Category Archives: General Posts

The Knock and Announce Rule: Is the Exclusionary Rule the Proper Remedy?

John Bernans, Associate Member, University of Cincinnati Law Review

The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”[1] The doctrines of the Fourth and Fifth Amendments apply to all government invasions into constitutionally-protected areas, such as the home.[2] In Mapp v. Ohio, the Court held that any evidence obtained through a violation of the Fourth Amendment would be suppressed at trial.[3] However, when making an arrest or executing a warrant, a law enforcement officer may break down an outer or inner door or window of a dwelling if, after providing notice of his intention to make the arrest or to execute the warrant, he is refused admittance.[4] In common parlance, this is called the “knock and announce” rule. While most courts have held that the exclusionary rule is not the proper remedy for knock and announce violations, the Supreme Court of the United States has held the knock and announce rule is applicable under certain circumstances.[5] The Supreme Court has stated that a civil remedy is perhaps the best option for knock and announce violations.[6] However, the Court stated an important caveat when it held that the knock and announce rule should still be emphasized because of its interests in protecting life, limb, and property. The Ohio Supreme Court addressed this issue in the case of State v. Bembry. Although the exclusionary rule should not apply, the knock and announce rule is a component of criminal procedure that should be emphasized.

The Progression of the Knock and Announce Rule

The knock and announce rule originated in the common law. At the time of the Framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling but generally indicated that he first ought to announce his presence and authority.[7] In Wilson, the Court held that this common-law “knock and announce” principle formed a part of the reasonableness inquiry under the Fourth Amendment.[8] The Court stated, “although the common law generally protected a man’s house as ‘his castle of defense and asylum,’ common law courts long have held that ‘when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the King’s process.’”[9] However, the Court also stated that “but before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.”[10] However, the Supreme Court in Wilson emphasized that not every entry must be preceded by an announcement.[11] The Court reasoned the Fourth Amendment’s flexibility requirement should not be read to mandate a rigid rule of announcement that ignored countervailing law enforcement interests.[12]

The flexibility of the knock and announce rule allows the necessity of an announcement to be determined on a case-by-case basis. While the general rule is that the police must knock and announce their presence before a warrant can be executed, whether or not this rule is applicable in a specific instance must be determined on a case-by-case basis.[13] The Court recognized in Wilson that the knock-and-announce requirement could give way “under circumstances presenting a threat of physical violence,” or “where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.”[14] In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence.[15] The Courts in Wilson and Richards both emphasized the validity of the knock and announce rule and the application of the rule on a case-by-case basis. The only issue left unclear are the remedies for knock and announce violations.

Proper Remedies for Knock and Announce Violations

Civil remedies, not the exclusionary rule, are the most appropriate remedies for knock and announce violations. In Hudson v. Michigan, the Court explained, “the exclusionary rule generates ‘substantial social costs.’”[16] The Court has been very cautious about expanding the reach of the exclusionary rule and stated that suppression of evidence has “always been [the Court’s] last resort, not [their] first impulse.”[17] The Court in Hudson explained that suppression of evidence found in a violation of the knock and announce rule provides little deterrence to police but has a detrimental effect on society.[18] Moreover, the balancing of individual rights versus the societal impact plays an important role in Hudson decision.[19] The Court explained that there were better options that did not have such a negative societal impact.[20] The Court noted the importance of civil rights suits under 42 U.S.C. §1988(b) that are available to individuals who claim a violation of the knock and announce rule.[21] Overall, the Court held the exclusionary rule is not the proper remedy because of its detrimental effect on society and other avenues for justice.

The Supreme Court of Ohio agreed with Hudson in that the exclusionary rule is not the proper remedy for a knock and announce violation.[22] In Bembry, law enforcement supervised two “controlled buys” of heroin from a suspect and subsequently obtained a warrant for search of the suspect’s apartment.[23] While executing the warrant, the officers knocked several times and eventually entered with a battering ram when the suspect did not come to the door.[24] The trial court in Bembry granted the defendant’s motion to suppress finding that law enforcement entered without any exigent circumstances.[25] The Supreme Court of Ohio reversed the trial court’s decision and held that the facts of Bembry’s case were almost identical to Hudson.[26] In both cases, the police arrived at the suspect’s home with a valid warrant to search the property. The police in Bembry announced their presence but only waited approximately fifteen seconds.[27] The Supreme Court of Ohio ruled the exclusionary rule was not the proper remedy and the trial court should have allowed the evidence obtained in the search[28]

Should the Knock and Announce Rule still Apply?

The exclusionary rule is not the proper remedy for violations of the knock and announce rule. The Court in Hudson was correct that the societal costs of suppressing evidence outweighs the potential benefits.[29] This is because the knock and announce rule becomes relevant only after a warrant has been issued, for if a warrant has not been issued, the search or seizure is presumptively unreasonable regardless of whether police gave notice of their presence.[30] Because law enforcement must have a valid warrant, suppressing evidence found after a knock and announce violation would cost society immensely. The Bembry court stated there is also a danger that the exclusionary rule would cause police to risk a knock and announce violation in exigent circumstances where the rule would not have been required.[31] The “substantial social costs” that the Court speaks of in Hudson details how if the exclusionary rule were to be applied to a knock and announce violation, society runs the risk of setting dangerous individuals free when law enforcement did in fact have probable cause and a valid warrant.[32]

Instead of an exclusionary remedy, citizens who bring suits because of a knock and announce violation should seek civil relief. In Hudson, the Court pointed to 42 U.S.C. § 1988(b).[33] Civil relief is the best option for relief for a knock and announce violation. That is because law enforcement came into an individual’s home with probable cause and a valid warrant. However, if there is unnecessary property damage or personal injury resulting from the knock and announce violation, an individual should be entitled to seek damages. The Court in Hudson detailed that two of the interests of the knock and announce rule were to protect human life and limb against violence from an unannounced entry and the protection of property.[34] These are interests that could be protected through civil remedies.

Though the knock and announce rule has been limited, it is an important principle of criminal procedure. This is not a rule that should be eliminated due to the potential for physical harm and the destruction of property. The Supreme Court emphasized that the knock and announce rule aims to protect life, limb, and property.[35] Hudson emphasized the potential for violence if police come into one’s home abruptly and unannounced.[36] For example, an individual who would have otherwise been compliant could be startled, thinking someone is breaking into his or her home. Moreover, an individual could think they are defending their home while law enforcement believes that the individual is resisting arrest. For this reason, a higher emphasis should be placed on the knock and announce rule and victims should be allowed to obtain relief for violations of this rule in civil court. If law enforcement knows that they will pay a high price for not announcing their presence, fewer knock and announce violations will occur. Ideally, this system could strike a better balance between law enforcement authority and law enforcement accountability.


The exclusionary rule is not the proper remedy for a knock and announce violation as it harms society and does not deter police conduct. A better remedy for such violations are severe civil damages. This ensures that society will not be impacted by the suppression of evidence and it will provide increased protection of an individual’s rights. Yet, in the interests of protecting life, limb, and property, the knock and announce rule should be emphasized when examining violations. Citizens should be given the chance to be compliant and open the door to law enforcement before the risk of violence and property destruction becomes imminent.

[1] U.S. Const. Amend. IV

[2] Mapp v. Ohio, 367 U.S. 643, 646 (1961)

[3] See Generally Mapp v. Ohio

[4] R.C. 2935.12

[5] See Generally Richardson v. Wisconsin 520 U.S. 385, 391, 392 (1997)

[6] Hudson v. Michigan, 547 U.S. 586 (2006)

[7] Wilson, 514 U.S. at 929

[8] Id.

[9] Id. at 931

[10] Id. at 931-932

[11] 933

[12] Id. at 934

[13] Richards v. Wisconsin, 520 U.S. 385, 391, 392 (1997)

[14] Id. at 391

[15] Id. at 394

[16] Hudson v. Michigan, 547 U.S. 586 (2006)

[17] Id. at 591

[18] Id at 587

[19] Id.

[20] Id. at 597-598

[21] Id.

[22] State v. Bembry, Slip Opinion No.2017-OHIO-8114

[23] Id. at ¶2-3

[24] Id. at ¶4

[25] Id. at ¶7

[26] Id. at ¶8

[27] Id.

[28] See Generally State v. Bembry

[29] Hudson, 547 U.S. at 587

[30] Id.

[31] Bembry, ¶22

[32] Hudson, 547 U.S. at 586

[33] Id. at 597-598

[34] Id. at 587

[35] Id.

[36] Id.


Payday Loans Should be Regulated

Alexander Foxx, Associate Member, University of Cincinnati Law Review


On October 5, 2017, the Consumer Financial Protection Bureau (CFPB) finalized a rule that restricts the lending autonomy of payday loan institutions.[1] The CFPB receives its legal authority to promulgate such rules from the Dodd-Frank Act.[2] These restrictions are opposed by industry members claiming the new rule restricts credit to individuals who need payday loans.[3] The rule: (1) protects vulnerable members of the population; (2) forces updates to the payday lending industry, expected and required in other financial institutions; and, (3) enforces accountability on payday lenders and borrowers. Given that borrower accountability and equitable distribution of regulations—signified by the second and third aspects of the rule listed above—are often supported on a bi-partisan basis, support for this rule should be widespread.

This article first examines key provisions of the new rule and the impetus behind the rule’s publication. The article then examines why views opposing the new rule are misplaced.

The Rule

The rule was finalized on October 5, 2017 and is titled “Payday, Vehicle Title, and Certain High-Cost Installment Loans” (the Rule).[4] The Rule applies to institutions that make covered loans.[5] Covered loans are loans made to a consumer “primarily for personal, family, or household purposes.”[6] The loans are often informally referred to as “payday” loans. This section will focus on three of the larger provisions of the rule: (1) restriction of debt traps; (2) restriction of payment penalties; and (3) requirement of information reporting.

The most notable portion of the Rule[7] is its regulation of “debt traps” posed by payday lenders.[8] Debt traps occur when an individual is granted a loan that they cannot repay and must obtain a second loan to repay the first.[9] This leads to a spiral of debt which, for many individuals, may be difficult to escape. The Rule requires that payday lenders undergo an examination of the borrowers’ finances  to determine whether the borrower can “make payments for major financial obligations, make all payments under the loan, and meet basic living expenses” during the term of the loan and for 30 days following the termination of the loan.[10] This is referred to as the “full-payment test.”[11]

The Rule makes exceptions to the full-payment test. Two significant exceptions are: (1) short-term, small loans; and (2) loans made from smaller lending institutions.[12] If a loan is under $500, it may not be subject to the full-payment test.[13] However, these smaller loans cannot be offered to borrowers who have other significant outstanding loan balances or have recently obtained a prior loan not covered by the full-payment test.[14] The Rule also exempts certain lenders from the full-payment test.[15] Specifically, “a lender who makes 2,500 or fewer covered short-term or balloon-payment loans per year and derives no more than 10 percent of its revenue from such loans” will not typically be subject to the full-payment test.[16]

A second notable provision of the Rule is its limiting of withdrawal penalties.[17] When lenders are unable to withdraw the due amount from a borrower’s account, a fee is imposed on the borrower by the institution at which the borrower has an account.[18] This is similar to overdrafting a checking account. Repeated failed attempts to withdraw could lead to substantial fees for the borrower. The rule requires that: (1) lenders give written notice before attempting to debit the borrowers account; and (2) lenders must stop attempting debits after two unsuccessful attempts and wait for approval from the borrower.[19]

Third, the Rule imposes information reporting obligations on payday lenders in order to monitor compliance.[20] The Rule institutes this requirement to obtain information about the loans the institution provides to its borrowers.[21] Information that must be reported includes the amount of the loan, the minimum loan payment, and the term of the loan.[22] This reporting requirement may prove the most burdensome requirement to payday lenders because it will demand resources to update record-keeping processes and reporting technology.

Impetus for the Rule

The Rule was instituted by the CFPB as a reaction to abusive lending practices by payday lenders.[23] The background to the Rule notes that payday lenders’ practices deviate sharply from typical lenders and target a vulnerable group of individuals who are living “paycheck to paycheck.”[24] The Rule aims to curtail “unfair and abusive” lending practices that prey on these vulnerable populations.[25] While the rule extends protections against payday loans to a national scale and sets a floor for regulating deceptive lending practices, it is not groundbreaking—courts have invalidated or restricted loans from covered lenders for a number of years.[26]

Opposition to the Rule is Unfounded

Opposition to the Rule could manifest through: (1) opposition to paternalism; (2) opposition toward restricting nontraditional credit; or (3) industry opposition.

Paternalism is not an appropriate objection to the Rule. Paternalism connotes a condescending regulation of a reasonable and rational consumer. An objection of the Rule’s paternalism presumes that payday loan agreements contain material that is reasonably easy to comprehend. This is not the case. Institutional loans are inherently esoteric. Terms such as “principal,” “interest,” and “balance” carry vastly different meanings in a lay lexicon than they do in the financial industry. Regulation of inherently complicated fields with a large potential for abuse[27] is not typically viewed as paternalistic and should not be viewed as such here. Further, even if the Rule is paternalistic, the vulnerable population merits the protection. Individuals in dire financial straits may desire, or require, a more acute level of oversight due to the pressure imposed on them by their financial situation. Bankruptcy law protects individuals in financial difficulty—there is no reason the Rule cannot also provide financial protection. It is widely accepted that mortgage loans are highly regulated for the protection of the borrower.[28] It should be equally accepted that payday loans, with annual percentage interest rates often exceeding 36%,[29] should also be regulated for the benefit of the consumer.

Industry opposition against the Rule is out of proportion. It seems odd that prior to the Rule, payday lenders had escaped extensive regulation, unlike traditional lending institutions. Traditional banks are subject to a plethora of federal legislation including the Dodd-Frank Act, capital requirements, money laundering regulations, disclosure regulations, Veteran Administration regulations, civil rights regulations, regulation from the Federal Reserve, regulation from the Office of Comptroller of the Currency, and regulation from the Federal Deposit Insurance Corporation. Yet payday lenders are subject to less regulation even though they advertise a much riskier product.[30] Opposition from the payday loan industry highlights the disparate regulatory burdens placed upon payday lenders and traditional lenders. Specifically, payday lenders have fewer regulations than traditional lenders, even following the passage of the Rule.

Finally, the view that restricting payday lending could tighten credit access for those who need credit is problematic. The New York Times noted that the Rule restrictions could decrease the number of loans made by 55%.[31] If this percentage reflects a decline in credit availability, many individuals could be negatively impacted. Presumably, many individuals resort to payday lenders because they do not quality for credit through a traditional lender. If this source of credit is eliminated, many individuals may be starved for necessary credit. However, the Rule addresses some of these concerns by exempting some organizations from the Rule and by loosening the Rule requirements for loans of small amounts.[32] This may properly regulate payday lenders while still providing access to credit.


The CFPB’s new Rule imposing restrictions on payday lenders is legally proper and productive policy. It is passed with the legal authority of the Dodd-Frank Act in furtherance of the CFPB’s mission of regulating financial institutions for the benefit of consumers. Opposition to the Rule is misplaced and does not serve as a sound reason for repeal of the Rule. The rule is not paternalistic, does not unduly restrict credit markets, and is not overly burdensome on the payday loan industry. The Rule should not be politically contested, but should be supported on a bi-partisan basis.

[1] CFPB, (last accessed Oct. 16, 2017).


[3] New York Times, (last accessed Oct. 17, 2017).

[4] CFPB,, 1, (last accessed October 19, 2017).

[5] CFPB,, 1509, (last accessed October 19, 2017).

[6] Id.

[7] Id.

[8] CFPB, (last accessed Oct. 16, 2017).

[9] CFPB, (last accessed Oct. 16, 2017).

[10] CFPB,, 1518 (last accessed October 19, 2017);

[11] CFPB, (last accessed Oct. 16, 2017).

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] CFPB,, 5, (last accessed Oct. 20, 2017).

[18] Id.

[19] Id. at 6.

[20] CFPB,, 8, (last accessed October 20, 2017).

[21] Id. at 8.

[22] Id. at 1548.

[23] CFPB,, 1, (last accessed October 20, 2017).

[24] Id. at 2-3.

[25] Id. at 1.

[26] See, e.g. State ex rel. King v. B&B Inv. Grp., Inc., 329 P.3d 658 (N.M. 2014); Daye v. Cmty. Fin. Serv. Ctrs., 233 F. Supp. 3d 946 (D.N.M. 2017); James v. Nat’l Fin., LLC, 132 A.3d 799 (Del. Ch. 2016).

[27] Such as the legal field.

[28] Regulators include Fannie Mae, Freddie Mac, and the Department of Housing and Urban Development, among others

[29] New York Times, (last accessed Oct. 20, 2017).

[30] Indicated by the much higher interest rates associated with payday loans

[31]See New York Times, (last accessed Oct. 20, 2017).

[32] CFPB, (last accessed Oct. 20, 2017).


Points For Privacy: The Cost of Customer Reward Programs

Alexandra Soisson, Associate Member, University of Cincinnati Law Review

Today it is difficult to make a purchase at a grocery store or gas station without being asked to join a rewards program or customer club. Cashiers highlight the extensive benefits and rewards of membership while being sure to emphasize that it is completely “free.” Though it is often the case it may not cost any money to join these programs, these reward programs do come at the expense of revealing your personal information. Joining these groups almost always requires providing a phone number, address, or email. It may seem identification is the primary purpose for the information, but the company can use the information however they please. In most cases, companies use this information for advertising. Because of the growing number of social media outlets and virtual identities available, that can mean extensive ways to connect to a new customer. The question then becomes whether the company has permission to contact the customer in the first place and what specific information they can send the new consumer. This question is being addressed in San Pedro-Salcedo v. Häagen-Dazs Shoppe Co, where the court is analyzing major issues surrounding reward programs and privacy. The central issues addressed here are: (1) what constitutes an advertisement and (2) what level of consent should be required to send any sort of communication to a member of a business rewards program.

The Telephone Consumer Protection Act of 1991

The Telephone Consumer Protection Act (TCPA) was ratified in 1991 as an amendment to the 1934 Communications Act. The TCPA was enacted in response to evolving technology and the growing concern over the vast increase of telemarketing in American homes.[1] In 1990 it was estimated more than 300,000 telemarketers contacted over 18 million Americans every day.[2] This enormous volume of calls was made possible by the invention of autodialers, or robocalls, which would use machines to automatically dial phone numbers and deliver messages to consumers.[3] Though this invention revolutionized the industry, it led to a significant increase in the number of telemarketing calls reaching American homes each day. In response, the legislature created the Telephone Consumer Protection Act which placed significant restrictions on the use of the autodialers and telemarketing generally.[4] Specifically, the Act explicitly prohibited the use of any automatic telephone dialing system to contact any telephone number assigned to a cell phone.[5]

Naturally, there are exceptions to this rule. Though the Act does specifically bar the use of autodialers to contact cellular phones, there are exceptions that remove a call from the scope of the provision.[6] One exception allows for autodials to be used if the receiver gives consent. The level of consent required to remove the call from the restrictions of the provision and allow an autodialer to be used depends on the type of call.[7] A text or call that includes or introduces an advertisements or constitutes telemarketing may only be sent with the consumer’s express written consent.[8] In contrast, a text or call that does not include or introduce an advertisement and does not constitute telemarketing may be sent with any prior consent.[9]

San Pedro-Salcedo v. Häagen-Dazs Shoppe Co.

In April of 2017, the Plaintiff patronized a Häagen-Dazs store where she was asked if she would like to enroll in the Häagen-Dazs customer rewards program.[10] The Plaintiff provided her phone number to enroll and later that day she received a text message from the Defendant reading “Thank you for joining Häagen-Dazs Rewards! Download our app here.”[11] Plaintiff alleged the text constituted a telemarketing or advertising message in violation of the TCPA.[12] Whether the communication is a violation of the TCPA falls on whether or not it should be categorized as an “advertisement.”[13] Because it is clear that the Plaintiff did not give written consent to the defendant, which would allow the defendant to send advertisements, any message deemed to be an advertisement or telemarketing communication would be a violation.[14]

The TCPA defines “advertisement” as “any material advertising the commercial availability or quality of any product, goods, or services” and defines “telemarketing” as “the initiation of a message for the purposes of encourages the purchase or rental of, or investment in, property, goods, or services.”[15] The Plaintiff  was able to survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss and is now tasked with proving that the message constituted an advertisement or telemarketing communication and violated the TCPA.[16]

The Text is an Advertisement

The court should find the text message sent from the Defendant to the Plaintiff constituted an advertisement. Relying on the definition from the Telephone Consumer Protection Act and the delivery restrictions applied to that act, the invitation to download the Defendant’s mobile application should be considered an advertisement and thus a violation of the TCPA.

The words “download our app here” included in the text message from the Defendant to the Plaintiff are, at a minimum, an introduction to an advertisement. The message invites the consumer to download the Defendant’s mobile application (“app”) where he or she can access discounts, sales, and descriptions of the Defendant’s product. Though this information may not be included in the text message itself, the link to the mobile app where this information can be found and the invitation to download the app constitutes an introduction to an advertisement. Under Section 47 C.F.R. § 64.1200(a)(2), a text or call that includes or introduces an advertisement…may only be sent with the consumer’s express written consent.[17] The text message to the Plaintiff introduced the Defendant’s mobile app, where information about the Defendant’s product can be found. Therefore, if the Defendant’s mobile app is considered an advertisement, the message was a violation.

The question then falls on whether the Defendant’s mobile app should be considered an advertisement. The Defendant’s argument focused on the text message sent to the Defendant, but failed to address the mobile app the text introduced. The Defendant argued that the text message itself does not fall under the TCPA definition of the word “advertisement,” which is likely true. However, that defense ignores the fact that because the text message introduces the Defendant’s mobile application to the recipient, the qualification of the mobile app as an advertisement is equally important. To determine if the mobile app is an advertisement within the TCPA, it is most appropriate to look at the definition within the Act. The TCPA defines an advertisement as “any material advertising the commercial availability or quality of any product, goods, or services.”[18] The Defendant’s mobile app includes maps to nearby Häagen-Dazs stores, lists of the products offered, and a description of the quality of the products made by the Defendant.[19] These features of the mobile app fall under the TCPA definition of advertisement.

The defense could argue that their message is not a violation of the TCPA because the Plaintiff gave her implicit consent when she offered the cashier her phone number. However, this argument overlooks an important part of the consent exception built into the act. To obtain consent to send a message or call to a cell phone, the sender only needs to get verbal or implicit consent, but to send a message that constitutes an advertisement, the sender must have explicit written consent from the recipient.[20] Since the message received by the Plaintiff should advertisement under the TCPA and since she clearly did not give written consent, the consent exception does not apply. If the Defendant wanted to send a message that introduced an advertisement to the Plaintiff, they should have obtained explicit written consent either through an initial text seeking consent to advertise or a written contract signed when the cahier took the Plaintiff’s phone number. If, however, the court rules that the mobile application does not constitute an advertisement, then the Plaintiff’s implicit verbal consent is enough for the defense to have sent the text message.

Though the court will likely find that the Defendant violated the TCPA, what is the harm? The Plaintiff received one text message. Who cares? It is easy to take this approach and see this case as one small incident with little to no damage. However, the greater importance of the case is the slippery slope that can develop if small exceptions, like one text message, are ignored. If courts begin to set precedent that allows businesses to freely use private contact information, it can quickly lead to an avalanche of unwanted advertising or pseudo-advertising to consumers. Once one text message is allowed, there is nothing to stop businesses from sending unlimited messages to consumers.


As reward programs such as the one created by the Defendant become more and more popular and technology develops to support them, there are an increasing number of ways consumers can be reached and targeted by advertisements. There are clear benefits to these programs and many consumers enjoy the ability to build up points and earn rewards for their spending. However, at the same time it is important for the courts, legislature, and consumers to continue to address the relevant communication restrictions that should come with these programs. Consumers must also be aware of exactly what they are agreeing to when they join these programs and businesses should be clear about how they are going to use the consumer’s contact information. This clarity can be achieved through express agreements and written consent. Customers interested in receiving information and advertisements from the businesses like Häagen-Dazs should be offered the opportunity to do so. Meanwhile, consumers who are not interested in exposing themselves to the hidden costs of the reward programs should be able to easily and explicitly refuse consent.

[1] See Spencer Weber Waller, The Telephone Consumer Protection Act of 1991: Adapting Consumer Protection to Changing Technology, 26 Loyola Consumer L. Rev. 343, 352 (2014).

[2] See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C. Rcd. 14014 (July 3, 2003).

[3] Spencer Weber Waller, supra at 353.

[4] Id.

[5] San Pedro-Salcedo v. Haagen-Dazs Shoppe Co., LEXIS 168532 1,4 (U.S. Dist. 2017).

[6] Id.; When the act refers to a call, this includes any communication to the device including a telephone call or text message.

[7] Id. citing Daniel v. Five Stars Loyalty, Inc., 2015 U.S. Dist. LEXIS 159007, 2015 WL 7454260

[8] San Pedro-Salcedo, LEXIS 168532 at 4.; (emphasis added).

[9] Id. (emphasis added).

[10] San Pedro-Salcedo, LEXIS 168532 at 2.

[11] Id.

[12] Id. at 3.

[13] Id. at 5.

[14] Id. at 7.; The issue of whether an autodialer was used will also be relevant to the analysis at trial, but that information is not currently known as discovery as not yet taken place. However, that information is not relevant for the purposes of the question posed here.

[15] San Pedro-Salcedo, LEXIS 168532 at 5.

[16] Id. at 9.

[17] Id. at 4.; (emphasis added).

[18] San Pedro-Salcedo, LEXIS 168532 at 5.

[19] Information obtained by downloading the Häagen-Dazs mobile application.

[20] San Pedro-Salcedo, LEXIS 168532 at 4.; (emphasis added).


Monica Welker, Associate Member, University of Cincinnati Law Review

Ramon was a lawful permanent resident (LPR) who moved to the U.S. from the Dominican Republic with his family when he was seven.

Immigrants who committed crimes, released into the public, and commit no further crimes should be held according to the conditions of 8 U.S.C. §1226(a), which permits him bond, and not the stricter §1226(c).


The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) has increased the number of LPRs deported.[2] The relevant portion of the law, codified in 8 U.S.C. § 1226, states that the Attorney General (AG) has the right to grant bail to immigrants pending deportation hearings “except as provided in subsection (c).” In short, the AG may release aliens on bond while their deportation hearings are pending. Subsection (c) defines “criminal aliens” as those having committed crimes enumerated in § 1182 or § 1227.[3] § 1226(c) orders the AG to “take into custody any [criminal alien] . . . when the alien is released” and denies the AG the authority to release any criminal alien unless the alien is in the witness protection program.

Thus, the question explored herein is whether the statutory language “when the alien is released” permits a gap of months or years between an alien’s release and his detention without bail. Turning to the case of Ramon, he became deportable with his two drug convictions, and he should have been picked up by ICE when he was released from his five-day custodial sentence and held without bail, pending a deportation hearing. ICE did not pick him up for seven years. Therefore, does he fall within §1226(a), which permits him a bond hearing, or §1226(c), which would not permit him to be released on bond pending his removal hearing?


Many cases on this topic cite Chevron, U.S.A., inc. vs. National Resources Defense Council, Inc.[4] There, the Supreme Court laid out when and how a court should defer to an administrative agency’s interpretation of ambiguous language within a statute. The Chevron test’s first step is to determine if Congress had a clear purpose to the provision. The second step is to determine if the administrative agency’s interpretation is reasonable.

The crux of this circuit split is whether the Chevron test applies to cases regarding
§ 1226(c). The Court directly connected the Chevron ruling to cases before the Board of Immigration Appeals (BIA) in INS v. Aguirre-Aguirre, where it ruled that the Attorney General, by giving the BIA the authority to hear cases and make determinations, had passed on his agency’s Chevron deference to the BIA.[5] In other words, the BIA’s interpretation of how to fill in gaps in ambiguously worded immigration statutes should be considered authoritative by a court unless the interpretation is unreasonable. This becomes important when considering the circuit opinions, as some have relied on this while others have explicitly rejected it.


The Fourth Circuit considered the issue first, in 2012’s Hosh v. Lucero.[6] The court acknowledged the statutory language was ambiguous, and applied the ruling in Chevron by looking to see if the BIA or the AG had interpreted the ambiguous language of “when the alien is released.”[7] In 2001, the BIA considered the meaning of “when the alien is released” and found it to place no importance on the timing of the alien’s being taken into custody.Thus, the court held that the BIA’s interpretation was reasonable and its interpretation should be used.[9]

The Third Circuit ruled on the issue next, in Sylvain v. Att’y Gen. of the U.S.[10] It too looked to Chevron/Aguirre/Rojas and found the BIA interpretation authoritative.[11]

The Tenth Circuit followed in Olmos v. Holder, where it agreed with its sister circuits and cited Chevron.[12] It also ruled that because the statute says the AG “shall take into custody any alien”, it imposed a duty on the AG that did not go away with the passage of time after the release of the criminal alien.[13]

October 2015 brought Lora v. Shanahan to the Second Circuit.[14] In addition to citing Chevron,[15] the court also held that a criminal alien cannot be held for more than six months without a bail hearing.[16]

An unusual en banc split occurred in the First Circuit in December of 2015 when the court considered the issue of timeliness of a criminal alien’s arrest after release.[17] The three judges who found that a criminal alien who wasn’t arrested immediately upon release from prison, and therefore were eligible for a bond hearing, rejected the notion that Chevron applied to the case before them.[18] The first opinion found 1227(c) was not ambiguous when considered in light of previous legislation, which used the phrase “upon release” in a similar statutory structure.[19]Thus, the panel wrote, the statute’s intent was clear and was not subject to Chevron considerations.[20] The opinion went on to determine that “upon release” and “when the alien is released” imply a time-sensitive directive, and that criminal aliens not apprehended reasonably soon after release were subject to §1226(a) considerations, including a bond hearing.

In 2016, the Ninth Circuit explicitly rejected the notion that the issue required Chevron deference.[21] The court agreed with the first opinion in Castañeda that “when” was time limiting.[22]


The plain text of the statute reveals the First and Ninth Circuit opinions to be more persuasive, but still ambiguous. The phrase “The Attorney General shall take into custody any [criminal alien] when the alien is released” is ambiguous even after examining the plain language meaning of the statute. The Second, Third, Fourth and Tenth Circuit courts interpret the logical meaning of the phrase to be like that of the order, “John shall take out the garbage when John gets home from school.” Inherent in that meaning is the implication that John will not be excused from the duty if he first plays video games and takes a nap. He will still have the duty of taking out the trash. The interpretation of the Ninth and half of the First Circuits views the meaning of “when” to be that of phrase, “Dr. Smith shall prescribe opioids when Jill is in chronic, serious pain.” In this directive, the duty of Dr. Smith is definitely time limited to the condition enumerated after the word “when.”

The first interpretation of “when” is flawed because John’s duty to take out the garbage is limited. While the duty still exists after he takes a nap, the duty will eventually end: his mother will soon give up and take out the garbage herself, or the duty will be reimposed upon him with different conditions (e.g. John shall take the garbage out when he is getting ready for bed). It all comes down to the word “when” in the statute. Merriam-Webster’s definitions of “when” fits both definitions. When can mean “at which time” or “at what time”, but it can also mean “and then.”[23] If after examining the plain text meaning of a statute, and it still appears ambiguous, one can look to the doctrine of constitutional avoidance.[24]This doctrine prevents ambiguous statutory language from threatening constitutional rights. In other words, if ambiguous language makes the meaning of a statute unclear, the ambiguous language cannot be interpreted to take away constitutional protections. It is unreasonable to decide that LPRs, without exigent circumstances (such as being a flight risk), should not have bond hearings.  Giving Chevron deference to an agency interpretation that is contrary to the Constitution’s Fifth Amendment protections to LPRs violates the doctrine of constitutional avoidance.

Specifically, in the circuit opinions that don’t believe “when the alien is released” is time limiting, one notes that two opinions acknowledged that LPRs are guaranteed constitutional protections. Olmos dealt directly with the issue of constitutional avoidance, but the facts of that case allowed it to dismiss the concern as the Olmos had only been released six days prior to his detention by ICE.[25] The Second Circuit in Lora acknowledged denying LPRs a bond hearing had constitutional issues when it guaranteed them a bond hearing after six months in detention.

LPRs cannot be held indefinitely without bail any more than an ordinary citizen can. Both groups are guaranteed protection from unlawful search and seizure and guaranteed habeas corpus rights. To deny one group those rights because of an “immigration crisis” could lead to more and more groups having rights taken away as a result of other perceived crises.


LPRs are due Fifth Amendment protections and only an exigent circumstance should permit the AG to detain a criminal alien without a bond hearing. In §1227(c), Congress sought to prevent certain criminal aliens from fleeing deportation, presumably because it found that some were flight risks.[27] If the flight risk is diminished because the criminal alien has been out of trouble for years, then the exigent circumstances are no longer in place and the LPRs should be granted their Fifth Amendment right to a bond hearing.

[1] These are the facts in Rodriguez v. Shanahan, 84 F. Supp. 3d 251 (S.D.N.Y. 2015).

[2] Aarti Kohli, Does the Crime Fit the Punishment?: Recent Judicial Actions Expanding the Rights of Noncitizens, 2 Calif. L. Rev. Circuit 1, 15.

[3] These crimes include crimes of moral turpitude, drug offenses, multiple convictions, high speed light, and not registering as a sex offender.

[4] 467 U.S. 837 (1984).

[5] 526 U.S. 415, 424-425 (1999).

[6] 680 F.3d 375 (4th Cir. 2012).

[7] Id. at 380.

[8] In re Rojas, 23 I. & N. Dec. 117, 10-13 (B.I.A. May 18, 2001).

[9] Hosh, 680 F.3d at 381.

[10] 714 F.3d 150 (3rd Cir. 2013).

[11] Id. at 156-157.

[12] 780 F.3d 1313, 1322 (10th Cir. 2015).

[13] Id. at 1324-1325.

[14] 804 F.3d 601 (2nd Cir. 2015).

[15] Id. at 611-612.

[16] Id. at 616.

[17] Castañeda v. Souza, 810 F.3d 15, 18 (1st Cir. 2015).

[18] Id. at 23-24.

[19] Id. at 19.

[20] Id. at 23-24.

[21] 831 F.3d 1193, 1197 (9th Cir. 2016).

[22] 1204.

[23] Merriam-Webster Online, “when”

[24] Valenzuela Gallardo v. Lynch, 818 F.3d 808, 816-817 (9th Cir 2016).

[25] Olmos, 780 F.3d 1320-1324.

[26] See supra n. 16.

[27] Olmos, 780 F.3d 1319.

When Does the Right to Counsel Attach?

Maria Castro, Associate Member, University of Cincinnati Law Review

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”[1] The circuit courts are split regarding when the right to counsel attaches.[2] The Fifth, Ninth, Tenth, Eleventh, and D.C. Circuits have enforced a bright-line rule.[3] The bright-line rule provides that the right to counsel attaches only after formal charges have been filed.[4] The First, Third, Fourth, and Seventh Circuits have rejected the bright-line rule but have not definitively held that the right to counsel attaches at pre-indictment negotiations.[5] In Turner v. United States, the Sixth Circuit expressed concerns regarding the impact of the bright-line rule.[6] However, the Sixth Circuit ultimately followed precedent and enforced the rule.[7] In October 2017, the Sixth Circuit decided to reconsider Turner and reheard the case en banc. The Sixth Circuit should overturn its precedent and find that the right to counsel attaches during pre-indictment plea negotiations because the average defendant is not equipped to adequately negotiate a fair plea deal without the assistance of counsel.

The Bright-Line Rule and Pre-Indictment Plea Bargaining

The bright-line rule provides that the right to counsel attaches only when: (1) the prosecutor brings formal charges, either in the form of indictment or information; or (2) after an appearance before a judge, such as arraignment or first appearance.[8] The bright-line rule was created in United States v. Gouveia.[9] In Gouveia, the Supreme Court acknowledged that the Sixth Amendment right to counsel “attaches at the initiation of adversary judicial criminal proceedings.”[10] The Court in Gouveia recognized that the core purpose of the right to counsel is to “assure aid at trial, ‘when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.’”[11] In addition, the Court recognized that the average defendant does not have the professional legal skill needed to protect himself or herself against the experienced prosecutor.[12] The Court found that:

“Although we have extended an accused’s right to counsel to certain ‘critical’ pretrial proceedings[13] . . . we have done so recognizing that at those proceedings, ‘the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both’[14] . . . in a situation where the results of the confrontation ‘might well settle the accused’s fate and reduce the trial itself to a mere formality.’”[15]

Accordingly, the purpose of the Sixth Amendment right to counsel is to protect the defendant during critical confrontations with the prosecution.

Scholars estimate that about ninety to ninety-five percent of cases are resolved through plea-bargaining.[16] Pre-indictment plea negotiations, also known as “charge bargaining,” occur when the prosecution and the defendant negotiate about the specific charges to which the defendant will plead guilty.[17] In 2012, the Supreme Court in Lafler and Frye held that plea negotiations are “critical stages” that give rise to the Sixth Amendment right to counsel.[18] However, Lafler and Frye addressed plea negotiations that occur after indictment, and left open the question of whether the right to counsel attaches to pre-indictment plea negotiations.[19]

Turner v. United States

Despite its concerts regarding the impact of the bright-line rule, the Sixth Circuit enforced the rule in Turner v. United States. In Turner, the defendant robbed four businesses at gunpoint and was arrested by officers working on a joint federal-state anticrime task force.[20] The defendant was charged with aggravated robbery under Tennessee state law and retained counsel to represent him.[21] While the state proceedings were pending, the U.S. Attorney General and the defendant’s attorney from the state proceeding discussed settlement regarding the defendant’s upcoming federal charges.[22] The Assistant Attorney General told the defendant’s lawyer that they would offer 15 years on the condition that the defendant accept the offer before the federal indictment was returned.[23] However, the defendant did not accept the plea offer before the federal indictment was returned.[24] Subsequently, the defendant fired his attorney and retained new counsel.[25] After the federal indictment was returned, the Assistant Attorney General offered a twenty-five year sentence.[26] The defendant accepted the deal and pleaded guilty to all four counts, waiving his right to appeal.[27] Consequently, the defendant filed a motion to vacate or set aside the federal conviction based on ineffective assistance of counsel during plea negotiations concerning the federal charges.[28] The Sixth Circuit held that the defendant did not have a Sixth Amendment right to counsel regarding plea negotiations prior to the filing of formal charges and therefore could not argue that his counsel was constitutionally ineffective.[29] In April 2017, the Sixth Circuit vacated the Turner opinion and voted to rehear the case en banc.[30]

The Sixth Circuit Should Overturn Precedent

The Sixth Amendment right to counsel should be extended to pre-indictment plea negotiations. Plea-bargaining is a critical stage in the criminal justice system. Cases are frequently resolved through plea-bargaining. Plea-bargaining that results in a guilty plea “conserves the financial expense of a trial, allows for defendants to admit their wrongdoing to victims and the public, and, most important to the defendant, can provide more favorable sentencing outcomes than after a conviction at trial.”[31] However, the average defendant does not have the ability to negotiate a fair plea deal with the prosecutor.[32] The dangers that are present during post-indictment plea negotiations are also present during pre-indictment plea negotiations. Therefore, the bright-line that separates post-indictment negotiations from pre-indictment negotiations is an arbitrary line.

Regardless of when plea negotiations take place, the plea negotiation process is adversarial and the average defendant is not prepared to navigate the process on his or her own. Modern criminal proceedings rely heavily on plea-bargaining.[33] Denying a defendant’s right to counsel during plea-negotiations could result in a prosecutor taking advantage of a defendant or a defense counsel providing unprofessional service, and yet the defendant would have no ability to bring a claim for ineffective assistance of counsel since the defendant has no right to counsel during pre-indictment negotiations.[34] During pre-indictment plea negotiations, the “government has committed itself to prosecute” and “the adverse positions of government and defendant have solidified.”[35] During pre-indictment plea negotiations, the defendant faces a confrontation with the prosecutor that could “settle the accused’s fate.”[36]


The Sixth Circuit should overturn precedent and hold that the Sixth Amendment right to counsel attaches during pre-indictment plea negotiations. The average defendant is not in the position to adequately negotiate his or her own plea deal without the assistance of counsel. The purpose of the Sixth Amendment right to counsel is to protect the defendant during critical confrontations with the prosecution. The Supreme Court has found that post-indictment plea-negotiations trigger the right to counsel because plea negotiations are a critical stage during criminal proceedings. The bright-line separating post-indictment plea negotiations from pre-indictment plea negotiations is an arbitrary line because the dangers that are present in post-indictment plea negotiations are also present in pre-indictment plea negotiations.

[1] U.S. Const. Amend. 6.

[2] Steven J. Mulroy, “The Bright Line’s Dark Zone: Pre–Charge Attachment of the 6th Amendment Right to Counsel,” 92 Wash. L. Rev. –––– (2017) (forthcoming) (available electronically at

[3] United States v. Heinz, 983 F.2d 609, 612-13 (5th Cir. 1993); United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000); United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1117 (10th Cir. 1998); United States v. Waldon, 363 F.3d 1103, 1112 n. 3 (11th Cir. 2004); United States v. Sutton, 801 F.2d 1346, 1365-66 (D.C. Cir. 1986).

[4] Turner v. United States, 848 F.3d 767, 770 (6th Cir.2017), reh’g en banc granted, opinion vacated, 865 F.3d 338 (6th Cir.2017).

[5] Roberts v. State, 48 F.3d 1287, 1290 (1st Cir. 1995); Matteo v. Superintendent SCI Albion, 171 F.3d 877, 892-893 (3d Cir. en banc 1999); United States v. Burgess, 141 F.3d 1160 (4th Cir. 1998), 1998 WL 141157 at *2 (per curiam); United States v. Larkin, 978 F.2d 964, 969 (7th Cir 1992).

[6] Turner, 848 F.3d at 773.

[7] Id.

[8] Steven J. Mulroy, “The Bright Line’s Dark Zone: Pre–Charge Attachment of the 6th Amendment Right to Counsel,” 92 Wash. L. Rev. –––– (2017) (forthcoming) (available electronically at

[9] 467 U.S. 180 (following the plurality opinion in Kirby v. Illinois, 406 U.S. 682, 689–90, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)).

[10] 467 U.S. at 189.

[11] Id. at 188-189 (quoting United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619 (1973)).

[12] Id. at 189 (quoting Johnson v. Zerbst, 304 U.S. 458, 462–463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938)).

[13] United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (a post-indictment lineup was a critical stage of prosecution at which the defendant was as much entitled to aid of counsel as at trial).

[14] United States v. Ash, 413 U.S., 300, 310, 93 S.Ct., 2568, 2574.

[15] Wade, 388 U.S., at 224, 87 S.Ct., at 1930.

[16] Devers, Plea and Charge Bargaining: Research Summary. Bureau of Justice Assistance, U.S. Department of Justice (2011) (available electronically at

[17] Boss & Angarella, Negotiating Federal Plea Agreements Post-Booker: Same as it Ever Was? Criminal Justice (2008) (available electronically at

[18] Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379, (2012).

[19] Breslow, Signs of Life in the Supreme Court’s Uncharted Territory: Why the Right to Effective Assistance of Counsel Should Attach to Pre-Indictment Plea Bargaining, Fed. Law. 34 (2015).

[20] 848 F.3d at 768.

[21] Id.

[22] Id.

[23] Id. at 769.

[24] Id.

[25] Id.

[26] Turner, 848 F.3d at 769.

[27] Id.

[28] Id. at 768.

[29] Id.

[30] Turner v. United States, 865 F.3d 338 (6th Cir.2017).

[31] Breslow, Signs of Life in the Supreme Court’s Uncharted Territory: Why the Right to Effective Assistance of Counsel Should Attach to Pre-Indictment Plea Bargaining, Fed. Law. 34, 39 (2015).

[32] Id.

[33] Turner, 848 F.3d at 773.

[34] Mulroy, The Bright Line’s Dark Side: Pre-Charge Attachment of the Sixth Amendment Right to Counsel, 92 Wash. L. Rev. 213 (2017).

[35] Gouveia, 467 U.S. at 189.

[36] Id. at 190.

Trombetta and Youngblood in the Era of DNA

Zach Kurzhals, Associate Member, University of Cincinnati Law Review

Theoretically, criminal defendants are provided numerous advantages.[1] However, the risk-reward calculation has been skewed over our country’s history, making plea deals pervasive.[2] This has resulted in an increased number of erroneous convictions.[3] States have responded to this crisis and all 50 states have passed post-conviction DNA statutes.[4] However, many of these statutes have significant shortcomings.[5] These laws often fail to include adequate safeguards ensuring the preservation of DNA evidence.[6] Consequently, many prisoners petition for post-conviction DNA testing, have their petition granted, and are then informed that the evidence to be tested no longer exists.[7] The technology for DNA testing has advanced considerably in the last 30 years[8] and should re-shape the bad faith standard when applied to lost or destroyed DNA evidence.[9] States must recognize the exculpatory value of DNA evidence and provide a lower bad faith requirement when DNA evidence is missing. Such recognition would ensure prosecutors and police agencies create policies that preserve DNA evidence, thereby helping assuage the epidemic of wrongful incarceration.

Current Standards Regarding Post-Conviction Evidence

Three Supreme Court cases constitutionally guarantee a criminal defendant’s access to evidence.[10]  A criminal defendant is entitled to all exculpatory or impeaching information that is material to the guilt, innocence, or punishment of the defendant.[11] However, there is no federal post-conviction right to discovery.[12] In contrast, state post-conviction DNA statutes are specifically intended to provide a statutory entitlement to access of DNA testing. A majority of state statutes require DNA evidence be preserved.[13] However, many statutes mandating preservation of DNA evidence do not provide adequate safeguards for the preservation of DNA evidence.[14] This has resulted in a substantial destruction or loss of DNA evidence.[15] Additionally, it is unlikely to find an instance of state entities or agents facing repercussions for loss or destruction of DNA evidence in post-conviction proceedings. The only clear avenue of recourse for the prisoner is to claim a Due Process Clause (“DPC”) violation. A DPC violation claim based on spoliation of evidence operates under a different standard than that of Brady material. This is known as the “bad faith”[16] standard and it is extremely favorable to the state.[17]

The “Bad Faith” Standard

In Arizona v. Youngblood, the Supreme Court determined that the state does not have a duty to preserve potential exculpatory evidence.[18] Instead, the State’s duty to preserve evidence is limited to evidence that has apparent exculpatory value, and has no reasonably available alternative, and is expected to play a significant role in the suspect’s defense.[19] Additionally, the Court found a lack of intent, on behalf of the State, to support finding no DPC violation.[20] The Supreme Court explicitly stated that a finding of “bad faith” on the part of the State is required to find a DPC violation resulting from missing or destroyed evidence.[21] The Youngblood opinion distinguished situations involving Brady material and destroyed evidence as a difference between known exculpatory evidence and potential exculpatory evidence.[22] The Court stated that a bad faith standard would limit the burden placed on the State in preserving evidence by excluding evidence about which “no more can be said than it could have been subject to tests.”[23]

Antiquated Bad Faith and DNA

Every state has a post-conviction right to DNA testing.[24] Many of these statutes require the preservation of DNA evidence.[25] However, far too often a prisoner attempts to avail themselves of this new statutory right only to find the evidence that could prove their innocence missing.[26] Occasionally, acts of God or some tragedy may be the cause. What is perturbing is there is often an appalling absence of accountability regarding missing DNA evidence.[27] Often, the only available alternative for the prisoner is a DPC claim governed by the bad faith standard.

The bad faith standard is a substantial burden upon the convicted and is inappropriate for DNA evidence.[28] Anything short of a government official admitting to malicious destruction of evidence is likely to fail.[29] Overall, the bad faith standard is essentially insurmountable and is applied inconsistently across states.[30] Some state courts have begun to deviate from the standard for specific types of evidence.[31] The importance of DNA evidence is difficult to refute. DNA evidence has advanced considerably since its inception.[32] Improvements in testing DNA evidence should not be denigrated by the judiciary under an unattainable bad faith standard. DNA evidence has a unique and extremely rare quality when compared to other types of evidence: it can provide near certainty of guilt or innocence. Therefore, if a movement away from bad faith and its high burden on defendants can be justified in some areas of evidence, certainly DNA should not be the exception.

The burden on the government to preserve DNA evidence is not so strenuous that it requires the protection of the “bad faith” standard.[33] In cases where DNA evidence can be utilized by the prosecution, the State recognizes the inherent value of this evidence and thus insures its preservation. Current preservation of DNA evidence, for post-conviction relief, is at best substandard.[34] As technology advances, even poorly-stored DNA evidence is able to yield reliable results.[35] Storing DNA evidence is not a great burden on government, a single hair or a microscopic slide does not require much space. The governmental burden appears minimal when considering the value of affording the innocent the opportunity to redress manifest injustices.

Youngblood was decided long before DNA evidence was fully understood and used by law enforcement.[36] The State’s response to a DPC claim for lost DNA evidence since Youngblood has been almost universally that the loss of evidence was a result of neglect or mistake. This response has practically guaranteed a finding of no DPC violation.[37] Almost thirty years after Youngblood, DNA testing is by far the most superior investigation tool available. [38]

Today, DNA testing can identify or exclude individuals with almost 100% certainty[39] and is used pervasively within law enforcement communities.[40] It cannot be argued that police officers and prosecutors do not have an intimate understanding of DNA’s inherent exculpatory value. Therefore, considering statutes regarding DNA preservation, a police agency or a prosecutor should no longer be able to plead mere neglect, inattentiveness, or mistake regarding lost or destroyed DNA evidence.

The exculpatory value of DNA evidence is not disputed. The justice system should re-evaluate the standard applied to DNA evidence and account for our society’s augmented understanding, awareness, and use of DNA evidence. Currently, the standard requires a prisoner to prove the exculpatory value of evidence that they can no longer test. It would be extremely difficult for any individual to prove the exculpatory nature of non-existent evidence. To think an incarcerated individual would have the resources to meet such a standard is outlandish. Unsurprisingly, DNA testing has been central to the innocence movement taking place in the United States. A total of 351 DNA exonerations have taken place within the United States.[41] The DNA testing from those 351 exonerations led to the proper identification of 150 perpetrators.[42] Of those 351 exonerations, thirty-eight had pled guilty and the DNA evidence was not tested until the innocent person in prison petitioned for DNA testing. It can be posited that the innocence movement has proven the element of exculpatory value for all DNA evidence.


The illusion of the bad faith standard has begun to deteriorate as more states choose to deviate from it.[43] Justice Blackmun, in his dissent in Youngblood, expressed his concern that this test would be almost impossible to overcome.[44] The knowledge and hindsight of the last thirty years have confirmed Justice Blackmun’s apprehensions. Continued vulnerability of DNA evidence is discordant with the traditional and historical notions of fairness underpinning the criminal justice system.  DNA testing is not perfect. There is a modern effort for greater understanding of the subjective nature of interpreting DNA.[45] However, this can only lead to one logical outcome: even more accurate DNA assessments. As Justice Blackmun stated, “[t]he importance of [this] type of evidence is indisputable, and requiring police to recognize [its] importance is not unreasonable.”[46] With each year that passes and with each new technological innovation, both the importance of DNA and the need to preserve DNA evidence become more pronounced.

[1] U.S. Const. amend. IV; U.S. Const. amend. V; U.S. Const. amend. VI; U.S. Const. amend. VIII; U.S. Const. amend. XIV.

[2] Patricia Lee Refo, Opening Statement: The Vanishing Trial, 30 No. 2, Winter 2004 ABA Journal of Litigation; Jed S. Rakoff, Why Innocent People Plead Guilty, New York Review of Books, Nov. 20, 2014.

[3] Less than 3% of cases go to trial. Patricia Lee Refo, Opening Statement: The Vanishing Trial, 30 No. 2, Winter 2004 ABA Journal of Litigation. There was an average of three exonerations a week in America in 2016. Nat’l Registry of Exonerations, Exonerations in 2016 (March 7, 2017). A conservative estimate of erroneous convictions of one percent yields approximately 20,000 innocent persons in prison. INNOCENCE PRJOECT, (last visited Oct. 27, 2017).

[4] INNOCENCE PRJOECT, (last visited Oct. 27, 2017); See also Cal. Penal Code § 1417.9 (West 2017).

[5] Id. (listing five shortcomings such as not allowing those that plead guilty access to DNA testing).

[6] Id. (“Many laws fail to include adequate safeguards for preservation of DNA evidence.”).

[7] INNOCENCE PROJECT, (last visited Oct. 27, 2017). Additionally, The Ohio Innocence Project deals with this fairly often. Kyle Swenson, A Tiny Piece of Evidence Could Be the Key to Setting An Innocent Cleveland Man Free, Why Can’t Anyone at the Justice Center Find It?, Cleveland Scene, June 14, 2017.

[8] John M Butler, The Future of Forensic DNA Analysis, 370 Phil.Transactions Royal Soc’y Biological Sci. (2015, Aug. 5),

[9] The duty placed on police agencies is limited to evidence expected to play a significant role in the suspect’s defense. California v. Trombetta, 467 U.S. 479 (1984). The convicted must prove the exculpatory nature of destroyed or lost evidence for a finding of a due process violation. Arizona v. Youngblood, 488 U.S. 51 (1988).

[10] Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976) holding modified by United States v. Bagley, 473 U.S. 667 (1985); United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).

[11] Brady, 373 U.S. 83 (This case led to the coining of the phrase “Brady material.”).

[12] 28 U.S.C. § 2254 Rule 6(a) (West 2010); Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas petitioner . . . is not entitled to discovery as a matter of ordinary course.”).

[13] The following is not a complete list and could include at least 25 more states: Alaska; Arizona; Arkansas; California; Colorado; Connecticut; Florida; Georgia; Hawaii.

[14] INNOCENCE PROJECT, (last visited Oct. 27, 2017).

[15] Id. (stating that 29% of their cases between 2004 and 2015 were closed because of lost or destroyed evidence).

[16] Arizona v. Youngblood, 488 U.S. 51 (1988) (Larry Youngblood, convicted of child molestation, challenged his conviction based on the state’s failure to preserve evidence containing DNA. The Supreme Court ruled that Youngblood had to prove the DNA was exculpatory, and the police knew this before destroying or ruining the evidence. The court found Youngblood did not meet this burden. Larry Youngblood was ultimately exonerated 12 years later through advanced DNA testing.).

[17] See Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992) (stating petitioner must prove official animus or a conscious effort to suppress exculpatory evidence); See also United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (finding gross negligence insufficient for due process violation).

[18] California v. Trombetta, 467 U.S. 479 (1984)

[19] Id. at 488.

[20] Id. (“[A]uthorities in this case did not destroy respondents’ breath samples in a calculated effort to circumvent the disclosure requirements . . .  the officers here were acting ‘in good faith and in accord with their normal practice.’”).

[21] Youngblood, 488 U.S. 51 (1988).

[22] Id.

[23] Id.

[24] INNOCENCE PROJECT, (last visited Oct. 27, 2017).

[25] E.g., OHIO REV. CODE ANN. § 2933.82 (West 2010).

[26] INNOCENCE PROJECT, (last visited Oct. 27, 2017) (stating 29% of Innocence Project cases were closed due to lost or destroyed evidence).

[27]Anthony Johnson, a client of The Ohio Innocence Project (“OIP”), was granted the right to have DNA evidence tested. At the evidentiary hearing a police witness made clear that the evidence should be in their evidence room but no one could find it. Kyle Swenson, A Tiny Piece of Evidence Could Be the Key to Setting An Innocent Cleveland Man Free, Why Can’t Anyone at the Justice Center Find It?, Cleveland Scene, June 14, 2017.

[28] State v. Hawkinson, 829 N.W.2d 367 (Minn. 2013) (finding preservation request, before destruction of evidence, insufficient to show bad faith); but see City of Columbus v. Forest, 522 N.E.2d 52 (Ohio Ct. App. 1987) (finding destruction of evidence subsequent to a preservation request shifts the burden to the state).

[29]Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992) (finding petitioner must prove official animus or a conscious effort to suppress exculpatory evidence); See also United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (finding gross negligence insufficient for due process violation).

[30] Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanction for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893 (2009); Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. Univ. L. Rev. 2008, 241, 247 (2008).

[31] State v. Morales, 657 A.2d 585, 594 (Conn. 1995); Commonwealth v. Henderson, 582 N.E.2d 496 (Mass. 1991); State v. Matafeo, 787 P.2d 671 (Haw. 1990).

[32] Jennifer M. Romeika & Fei Yan, Recent Advances in Forensic DNA Analysis, Journal of Forensic Research 2013, S12, available at (last visited Oct. 28, 2017).

[33] Youngblood, 488 U.S. 51, 58 (1988) (stating part of the rationale for the bad faith standard is limiting the burden on police agencies in preserving evidence).

[34] INNOCENCE PROJECT, (last visited Oct. 27, 2017) (stating 29% of Innocence Project cases were closed due to lost or destroyed evidence).

[35] Larry Youngblood, the defendant in Arizona v. Youngblood, was exonerated by DNA evidence 17 years after the crimes occurrence in 2000. Nat’l Registry of Exonerations, Larry Youngblood, available at (last visited Oct/ 28, 2017).

[36] People v. Castro, 545 N.Y.S.2d 985 (Sup. Ct. 1989) (finding DNA evidence inadmissible because not proven reliable) overruled by People v. Wesley, 83 N.Y.2d 417, 633 N.E.2d 451 (N.Y. 1994); President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, at 25-26, September 2016.

[37] Elizabeth A. Bawden, Here Today, Gone Tomorrow—Three Common Mistakes Courts Make When Police Lose or Destroy Evidence with Apparent Exculpatory Value, 48 CLEV. ST. L. REV. 335, 350 (2000).

[38] John M Butler, The Future of Forensic DNA Analysis, 370 Phil.Transactions Royal Soc’y Biological Sci. (2015, Aug. 5),; (2015) CODIS – NDIS Statistics, (2017), (last visited Oct. 27, 2017) (stating the National DNA Index (NDIS) contains over 13,041,408 offender profiles, 2,860,423 arrestee profiles, and 804,902 forensic profiles as of September 2017).

[39] INNOCENCE PROJECT, (last visited Oct. 27, 2017) (In more than 25% of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted.”).

[40] CODIS – NDIS Statistics, (2017), (last visited Oct 27, 2017) (stating CODIS has produced over 392,684 hits assisting in more than 377,507 investigations); INNOCENCE PROJECT, (last visited Oct. 27, 2017) (“Since 1989, there have been tens of thousands of cases where prime suspects were identified and pursued—until DNA testing (prior to conviction) proved that they were wrongly accused.”).

[41] Id.

[42] Id.

[43] Morales, 657 A.2d 585, 594; Henderson, 582 N.E.2d 496; Matafeo, 787 P.2d 671; State v. Battease, 2006-Ohio-6617 (Ohio Ct. App. 2006) (“[W]here the defendant moves to have the evidence preserved and the state destroys the evidence, the burden shifts to the state to demonstrate its inculpatory value.”); City of Columbus v. Forest, 522 N.E.2d 52 (Ohio Ct. App. 1987) (reading an additional requirement into Trombetta, one imposing a constitutional duty on the State to respond to defense requests for preservation of evidence).

[44] Youngblood, 488 U.S. 51, 69 (1988) (6-3) (Blackmun, J. dissenting).

[45] President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, at 75-82, September 2016.

[46] Youngblood, 488 U.S. 51, 70 (1988) (6-3) (Blackmun, J. dissenting).

The “White” Elephant in the Room: How to Make State Judicial Elections Better


Patrick Reagan, Associate Member, University of Cincinnati Law Review

When people think of state judicial elections, they often think of the advertisements. Some of the “greatest hits” in this motley collection include hokey banjo tunes, This has in part led to state judicial elections being criticized for becoming sideshows that appeal to people’s worst intentions. In Republican Party of Minnesota v. White, the Supreme Court allowed judicial candidates to espouse their beliefs on a host of political issues—thus politicizing and polarizing judicial elections and allowing the possibility of bad candidates appealing to outside groups to influence an election. Overturning White and reaffirming the need for political neutrality in judicial elections can make these elections cleaner, better, and fairer.

  1. Why is this a problem?

The vast majority of judges in the United States are elected, either through a retention election after an initial appointment or a nonpartisan general election.[4] In fact, the United States is the only country in the world that elects its judges.[5] In contrast, French judges are appointed after attending l’Ecole Nationale de la Magistrature, an elite training school in Bordeaux from which fewer than 5% of students make it to graduation because of its rigorous teaching methods

As previously mentioned, there is no uniform system for states to select and retain judges. Eight states hold partisan elections for trial court judge selections.[7] Twenty states (including Ohio) have nonpartisan elections.[8] Seven states have uncontested retention elections, and four states use different types of elections (partisan, nonpartisan, or retention) depending upon the county.[9]

This non-uniform system presents a unique opening for outside groups to influence judicial elections because of their access to experts who understand the system as well as the law those judges are applying. The U.S. Chamber of Commerce has operated the Institute for Legal Reform (ILR) since the early 2000s. This year alone, the ILR has received more than $10.7 million from the U.S. Chamber of Commerce for lobbying activities, and [10] The ILR is not the only the only interest group influencing judicial elections. The Brennan Center has compiled a list of outside groups influencing state judicial elections.[11]

  1. Republican Party of Minnesota v. White

Minnesota’s Code of Judicial Conduct contained an “announcement clause” that prevented judicial candidates from announcing their views on disputed legal or political issues.[12] In 1998, Gregory Wersal ran for Minnesota Supreme Court and sought an advisory opinion from the Minnesota Lawyers Professional Responsibility Board (MLPRB) addressing whether they sought to enforce the announcement clause.[13] The Board indicated it had doubts about the provision but could not answer the question because he did not include specific pieces of literature or campaign materials with his request.[14] Wersal then sued the Board in federal court, alleging the provision prevented him from exercising his First Amendment rights during the campaign.[15]

After granting cert, the Supreme Court considered “whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues.”[16] The Court held “[t]he Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment.”[17]

Justice Scalia recited two compelling interests the respondents identified in attempting to survive strict scrutiny: (1) preserving the impartiality of the judiciary; and (2) preserving the appearance of impartiality The Court held  the provision was not narrowly tailored and did not survive strict scrutiny because, regardless of whether the judge had publicly espoused his/her views, “[t]he judge is applying the law (as he[/she] sees it) evenhandedly.”[19]

2.  Undoing the Damage and Depoliticizing Judicial Elections

Justice Scalia wrote “[a] judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason.”[21]

While it is important to know where a judge stands on certain issues, judges and candidates for judicial office must be limited in what they say while campaigning. Otherwise, the potential for a dangerous nexus between sharply opinionated judges and a large pot of special interest money will be opened. The announcement clause White invalidated, which Justice Scalia wrote was underinclusive, was anything but. It was a sufficiently broad, yet narrowly tailored, provision that kept Minnesota judicial elections from turning into a cesspool of silver-tongued lawyers While Justice Scalia was correct that a candidate for judge could espouse his/her views before filing to run but not while running, judges are limited in their political activities upon assuming the bench.[24] Furthermore, in cases like United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, the Supreme Court has held that “it is not only important the Government and its employees in fact avoid practicing political justice, but it is also critical they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.”[25]

Since White was decided, “political justice”[26] has crept into state judicial elections. For example, judges regularly seek the endorsement of pro-life organizations based on their views of Roe v. . Obviously, judges and judicial candidates will have opinions. However, for the sake of confidence in the judiciary, they should keep those opinions to themselves during their campaign. Some might say that allowing judges and judicial candidates to further espouse their views on contested political and legal issues will lead to more informed voters, thus allowing voters to make better choices. State judicial elections do give voters a unique glimpse of those who will be deciding thousands of cases that affect people on a very real level, but the forces of politics should be held at bay as much as possible from influencing those elections.

Electing a judge is different from electing a member of Congress, because politics and law are two fundamentally different things. Law structures basic human relationships. Politics, on the other hand, shapes the government and creates policies that affect society as a whole and can often be subjected to people’s worst intentions. Because of how deeply it touches us, law—and the people applying it—should be kept as far away as possible from politics. Provisions like the one invalidated in White go a long way to keep judicial elections focused on the qualifications of candidates, and a small bit of those candidates’ philosophies on the law. They erect a barrier between judicial elections and preserve the impartiality of the judicial system, which is a compelling interest that ensures societal interests are served and that people are treated fairly and with basic dignity. It also preserves confidence in the courts and maintains the balance of powers in the government. It will be harder for judges to do their job if they are viewed as too partisan.

Spending from the U.S. Chamber’s Institute for Legal Reform did not spike until after 2002, when White was decided.[27] In Washington state, outside groups poured millions into a race to unseat a member of the state supreme court who made rulings with which they disagreed.[28] In West Virginia, a coal company that was involved in a mine explosion that killed 29 workers spent $3 million to elect a state supreme court justice—who then participated in a decision that invalidated a $50 million judgment against the company. These examples, and others, show that the need to keep judges and judicial candidates away from politics is more compelling than ever.

Hypothetically speaking, an appointment system would fix things. However, there are flaws with this option because corruption has taken root in many state governments.[30] People should have a say in who interprets the law and administers justice, but people vying to become judges need to be kept away from engaging in overtly political speech so we can preserve judicial impartiality and prevent judicial elections from looking like other elections.

3.  Conclusion

In order for a strong judiciary to exist in the states, judges’ impartiality needs to be preserved. Law, including those applying it, and politics, should be kept away from each other. Perhaps a system where the governor makes the initial appointment and a retention election is held would be a good way to fix this, but that is a discussion for a different piece. In the meantime, the best first step in cleaning up state judicial elections is for the Supreme Court to overturn Republican Party of Minnesota v. White.


[1] Paul Newby – Tough But Fair, YouTube (Oct. 16, 2012)

[2] Allen Loughry My House Ad, YouTube (Sept. 26, 2012)

[3] Oster for Butler County Judge, YouTube (Apr. 11, 2014)

[4] Fact Sheet on Judicial Selection Methods in the States, American Bar Association,

[5] Adam Liptak, U.S. voting for judges perplexes other nations, The New York Times (May 25, 2008)

[6] Id.

[7]Fact Sheet on Judicial Selection Methods in the States, American Bar Association,

[8] Id.

[9] Id.

[10]Lobbying Spending Database—US Chamber Institute for Legal Reform, 2017,,

[11] Spending by Outside Groups in Judicial Races Hits Record High, Secret Money Dominates, Brennan Center for Justice (November 15, 2016),

[12] Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (citing Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000)).

[13] Id.

[14] Id.

[15] Id. at 770.

[16] White, 536 U.S. at 768.

[17] Id. at 788.

[18] Id. at 775 (citing this case’s 8th Circuit opinion, Reupblican Party of Minnesota v. Kelly, 247 F.3d 854, 867 (8th Cir. 2001), in turn citing Cox v. Louisiana, 379 U.S. 559, 565 (1965) (“[a] State may also properly protect the judicial process from being misjudged in the minds of the public.”); Suster v. Marshall, 149 F.3d 523, 532 (6th Cir. 1998) (holding that the state had a compelling interest in preventing corruption or the appearance of such in the judiciary); cf. Reeder v. Kansas City Bd. of Police Comm’rs, 733 F.2d 543, 547 (8th Cir.1984) (“[i]t is proper for a state to insist that the police be, and appear to be, above reproach, like Caesar’s wife.”).

[19] Id. at 776.

[20] Id. at 779-780 (“[t]he short of the matter is this: In Minnesota, a candidate for judicial office may not say ‘I think it is constitutional for the legislature to prohibit same-sex marriages.’ He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is elected. As a means of pursuing the objective of open-mindedness that respondents now articulate, the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous.”).

[21] Id. at 777.

[22] See Id. (“’[p]roof that a Justice’s mind at the time he[/she] joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.’”) (quoting Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion)).

[23] See Id. at 779 (“judges often state their views on disputed legal issues outside the context of adjudication—in classes that they conduct, and in books and speeches.”).

[24] See, e.g., Ohio Canons of Judicial Conduct, Canon 7.

[25] See, e.g., United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, 413 U.S. 548, 565 (1973).

[26] See Id.

[27] Lobbying Spending Database—US Chamber Institute for Legal Reform, 2017,,

[28] Gene Johnson, Political groups are pouring millions into state supreme court races, PBS (Nov. 1, 2016)

[29] See Sal Gentile, Interest groups spend millions to control state courts, study finds, PBS (August 17, 2010).

[30] See Harry Enten, Ranking The States From Most To Least Corrupt, FiveThirtyEight (Jan. 23, 2015)

A Workable Chameleon: Using Precedent to Help Define Conviction

David Wovrosh, Associate Member, University of Cincinnati Law Review

Becoming a convicted felon can happen in the blink of an eye. A defendant walks into a courtroom and emerges as a convicted felon a short time later. But between entering and exiting that courtroom, at what point is a defendant convicted? This question carries critical implications for the accused, as a conviction opens the door to widespread social and economic costs under “civil death” statutes.[1]

Cleaton v. Department of Justice, a recent decision from the Federal Circuit Court of Appeals, aptly demonstrates the tension in defining “conviction.”[2] Given the myriad of ways in which a conviction results in the automatic loss of economic, social, and liberty interests, courts should look to Lott v. United States[3] and Dickerson v. New Banner Institute, Inc.[4] to develop a framework for convictions that allows for a more informed and intelligent pleading. A Lott/Dickerson framework would not permit a conviction to attach until a no contest plea is no longer able to be withdrawn.

Cleaton and the Question of Conviction

Cleaton, a correctional officer at the Bureau of Prisons in Virginia, was arrested for a felony charge of possession of marijuana with intent to distribute.[5] After entering a withdrawable[6] nolo contendere plea,[7] the Bureau of Prisons (BOP) notified Cleaton that he was terminated from his position pursuant to § 7371(b), which mandates that “any law enforcement officer who is convicted of a felony shall be removed from employment as a law enforcement officer.”[8] After receiving notice of termination, Cleaton appealed the BOP decision to an administrative judge, arguing that the nolo contendere plea does not amount to a “conviction” within the meaning of § 7371(b).

In effect, Cleaton’s withdrawable nolo contendere plea was held to be a “conviction” within the meaning of the statute.[12]

When is a Conviction a Conviction?

The definition of “conviction” has been a consistent source of judicial wrangling. When drafting statutes, Congress has occasionally provided a statutory definition of a “conviction.” It has done so by using qualifying language to modify the circumstances of a conviction.[13] In other cases, Congress has remained silent on the definition.[14] Where there is silence on the statutory meaning, courts must necessarily decide what a “conviction” is meant to encompass.

In Cleaton, the Federal Circuit leaned heavily on the Supreme Court’s decision in Dickerson v. New Banner Institute, Inc.[15]  In Dickerson, the Supreme Court held a defendant charged under Title IV of the Gun Control Act of 1968 was “convicted” for the purpose of the statute where the individual had entered a guilty plea during negotiations, but had not yet been sentenced.[16] The Dickerson court looked to the legislative purpose of the statute for guidance.[17] The Court determined that the language of the statute showed that a guilty plea alone, without a sentence, rose to the level of “conviction” within the meaning of the statute.[18] Other cases have provided a more nuanced construction of “conviction.” In Lott v. United States, the Supreme Court found that a withdrawable nolo contendere plea itself was not a conviction.[19] Critically, the Court in Lott predicated its decision on the ability for the defendant to withdraw the plea before imposing a sentence.[20]

Against this conflicting backdrop, the Federal Circuit in Cleaton chose to apply the standard in Dickerson, while leaving Lott unexamined. Examining the Lott and Dickerson together, it becomes clear that the Federal Circuit Court of Appeals arrived at the wrong conclusion.

Lott and Dickerson Create a Workable Conviction Model

The Federal Circuit heavily relied on Dickerson to conclude that a plea alone is a conviction under §7371(b).  Dickerson was decided precisely because the statute defined the meaning of “conviction” in its text.[21] The Dickerson court read “conviction” as it did because the statute applied to indictments as well as convictions.[22] Dickerson held that a person can be convicted “once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence.”[23] Therefore, under Dickerson, a conviction requires two elements: an establishment of guilt and nothing to be done except sentencing.

Lott examined the meaning of conviction within the context of a withdrawable nolo contendere plea.[24] Where the plea is withdrawable, “it is the judgment of the court—not the plea—that constitutes the ‘determination of guilt.’ [W]e have not been cited to any case, and have found none, that holds or even intimates the contrary.”[25] Critically, the Court found a withdrawable nolo contendere plea “itself does not constitute a conviction.”[26]

Reading Lott and Dickerson together, if the defendant is procedurally able to withdraw their no contests plea, a conviction attaches at the point where a plea is no longer able to be withdrawn, and nothing remains to be done but sentence the defendant.

Cleaton’s Misinterpretation Creates Dangerous Precedent

§ 7371 does not define “conviction.”[27] Using the Lott/Dickerson framework, it is apparent neither conviction prongs were fulfilled. First, no “determination of guilt” had been made. Using Lott, a withdrawable plea of no contest is not able to be considered a “determination of guilt”.[28] For a withdrawable no contest plea to be considered a “determination of guilt,” the court must first render judgement. Second, because the plea itself is withdrawable, there may yet be steps for the court to take. When the plea may be withdrawn, a defendant may still withdraw and enter a plea of not guilty. Procedurally, the defendant has not exhausted his options and can still affect the disposition. This can be of critical importance. Defendants are often unaware of the ramifications of a guilty plea and the opportunity to revise a plea may offer a chance to avoid a “civil death.”[30]

The Stakes of a Misapplied Conviction

The ruling in Cleaton creates a dangerous precedent that could impact thousands of lives every year. By creating a broader class of people that potentially fall under the convict label than the Lott/Dickerson framework would allow thousands of people every year would be subjected to the automatic forfeiture of liberties.

Apart from time served, there are over 38,000 distinct ways that a conviction can trigger the automatic revocation of an individual’s rights by a process called “civil death.”[31] Civil death is the “substantial and permanent change in legal status” that take effect upon the moment of conviction.[32] The trigger for these wide-ranging collateral consequences is the moment of conviction.

Collateral consequences range from the restrictions on the ability to vote, housing assistance, government benefits such as food stamps, access to educational subsidies, employment, and even access to collecting social security, among many others.[33] These collateral consequences operate independently of the sentencing and do not require the defense counsel to inform the defendant of the collateral consequences of their plea.[34] Collateral consequences can often be harsher than the sentence itself. Indeed, the “most severe and long-lasting effect of conviction is not imprisonment or fine. Rather, it is being subjected to collateral consequences involving the actual or potential loss of civil rights, parental rights, public benefits, and employment opportunities.”[35]

One justification for the lack of scrutiny in determining collateral consequences at sentencing is the interest in judicial efficiency.[36] Others justify expansive sanctions, regardless of the nature of conviction, as punishment for the conviction itself.[37] This reflects the notion that collateral consequences “are civil regulatory measures designed to prevent undue risk by proven lawbreakers.”[38] Because they are divorced from the criminal proceedings, they need not be considered at trial.[39]

There is, however, growing caution around this proposition. Indeed, the American Bar Association has recommended a tighter nexus between collateral consequences and the specific crime, and that the defendant be fully informed of the consequences of his plea.[40] Even the Supreme Court has cautioned against entering a plea where one is unaware of the full ramifications of doing so.[41]

Given the economic and liberty interests at stake, the Federal Circuit’s broad interpretation of “conviction” sets a dangerous precedent. By holding that a withdrawable nolo contendere plea can be considered a “conviction,” the Federal Circuit is unwittingly casting millions more individuals into civic death. Instead, the Supreme Court should adopt a universal definition of “conviction” where the conviction only attaches at the point a plea is no longer able to be withdrawn. This would allow procedural room for a more informed and intelligent pleading system which enables defendants to fully consider the collateral consequences of their pleadings.


The precise definition of conviction remains, at best, a judicial “chameleon,” which struggles to find a judicial consensus on its precise meaning.[43] The Federal Circuit Court of Appeals has taken an expansive reading of the term and extended it to include pleadings of nolo contendere that have yet to receive a sentence.[44] To arrive at this conclusion, the Federal Circuit Court of Appeals misapplied case law and gave little to no attention precedent. In so doing, the court expanded the triggering mechanisms for the litany of other life-long collateral consequences found in civil death. Given the severity of the implications of a the Cleaton ruling, the Supreme Court should grant cert and require a more nuanced construction of the term “conviction.” This can be done by applying Lott to Dickenson where a withdrawable plea by itself cannot render a defendant a convict.

[1] Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1791 (2012).

[2] 839 F.3d 1126 (Fed. Cir. 2016).

[3] 367 U.S. 421 (1961).

[4] 460 U.S. 103 (1983).

[5] Id. at 1127.

[6] § 7371(b) is a federal rule. Procedurally, however, Cleaton was still able to withdraw his no contest plea under Virginia State procedure.

[7] U.S. v. Norris, 281 U.S. 619, 622 (1930). A nolo contendere plea, or no contest plea, is an admission of all of the elements of the case against the defendant.

[8] 5 U.S.C. § 7371(b).

[9] Cleaton, 839 F.3d at 1128.

[10] Id.

[11] Id. at 1127.

[12] Though § 7371 is a federal crime, the procedural laws of Virginia, where the case was being tried, allow for a defendant to withdraw a plea at any time before sentencing. Cleaton, 839 F.3d at 1130.

[13] See, e.g., 38 U.S.C.A. § 5313 (incarcerated . . . for a period in excess of sixty days for conviction of a felony) (emphasis added); 5 U.S.C. § 8332(o)(6)(a) (“the terms ‘finally convicted’ and ‘final conviction’ refer to a conviction (i) which has not been appealed and is no longer appealable because the time for taking an appeal has expired, or (ii) which has been appealed and the appeals process for which is completed”).

[14] “To be sure, the terms ‘convicted’ or ‘conviction’ do not have the same meaning in every federal statute. In some statutes those terms specifically are made to apply to one whose guilty plea has been accepted whether or not a final judgment has been entered.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113 n.6 (1983).

[15]460 U.S. 103 (1983).


[16] Id.  at 112-13. The Cleaton court, similarly relying on Dickerson, determined that federal law controlled the definition of “conviction” for the purposes of §7371(b). Cleaton, 839 F.3d at 1129. Cleaton, however, fails to distinguish that the state laws of Virginia still procedurally allow for a withdrawal of a plea before sentencing. Cleaton, 839 F.3d at 1130.

[17] Dickerson, 460 U.S. at 112-113.

[18] 112-113.

[19] Lott v. U.S., 367 U.S. 421, 426-27 (1961).

[20] Id. at 426-427.

[21] Dickerson, 460 U.S. at 116. “[18 U.S.C.A.] Sections 922(g) and (h) impose the same disabilities upon a person who ‘is under indictment’ for certain crimes. This use of the respective tenses is significant and demonstrates that Congress carefully distinguished between present status and a past event.”

[22]Harmon v. Teamsters, Chauffeurs & Helpers Loc. Union 371, 832 F.2d 976, 978 (7th Cir. 1987) (emphasis added).

[23] Dickerson, 460 U.S. at 114 (emphasis added).

[24] Lott v. U.S., 367 U.S. 421 (1961).

[25] Id. at 427.

[26] Id. at 426 (emphasis added).

[27] See 5 U.S.C. § 7371.

[28] Lott v. U.S., 367 U.S. at 427.

[29] Id.

[30] Gabriel J. Chin, The New Civil Death, supra note 1, at 1814-15.

[31] Kathryne M. Young & Joan Petersilia, Keeping Track: Surveillance, Control, and the Expansion of the Carceral State, 129 HARV. L. REV. 1318, 1341 (2016).

[32] Gabriel J. Chin, The New Civil Death, supra note 1, at 1790.

[33] See Lahny R. Silva, Clean Slate: Expanding Expungements and Pardons for Non-Violent Federal Offenders, 79 U. Cin. L. Rev. 155, 164 (2010); Kathleen M. Olivares et. al., The Collateral Consequences of A Felony Conviction: A National Study of State Legal Codes 10 Years Later, 60 Fed. Probation 10 (September 1996).

[34] Gabriel J. Chin, The New Civil Death, supra note 1, at 1814-15.

[35] Id. at 1791.

[36] Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 646 (2006).

[37] See Gabriel J. Chin, Are Collateral Sanctions Premised on Conduct or Conviction?: The Case of Abortion Doctors, 30 Fordham Urb. L.J. 1685 (2003).

[38] Id. at 1685.

[39] Id.

[40] “The legislature should not impose a collateral sanction on a person convicted of an offense unless it determines that the conduct constituting that particular offense provides so substantial a basis for imposing the sanction that the legislature cannot reasonably contemplate any circumstances in which imposing the sanction would not be justified.” ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons Standard 19-2.2 (3d ed. 2004), available at http:// In 19-2.3, the ABA also recommends a full notification to the defendant on the applicable collateral consequences of the conviction.

[41] See Padilla v. Kentucky, 559 U.S. 356 (2010).

[42] See, e.g. Gabriel J. Chin, The New Civil Death, supra note 1, at 1803-06. Given the steady rise of mass incarceration and the mass proliferation of collateral consequence statutes, judicial restraints on the ability to participate in civil life have exploded exponentially in recent decades.

[43] Harmon v. Teamsters, Chauffeurs & Helpers Loc. Union 371, 832 F.2d 976, 978 (7th Cir. 1987).

[44] Cleaton, 839 F.3d at 1129-30.

An Automatically-Returned Pre-Petition Stone Gathers no Moss

David Wovrosh, Associate Member, University of Cincinnati Law Review

Is it possible to do something by not doing anything at all?  At issue is a relatively common occurrence with an uncommonly difficult question: should a creditor return repossessed property to the debtor as soon as a bankruptcy petition has been filed? Recently, the Tenth Circuit accused the majority of circuits of fundamentally misreading the Bankruptcy Code.[1] In so doing, the Tenth Circuit has invited the Supreme Court to trek into a semantical thicket: what does it mean to “control” something? The Supreme Court should look to the contested statutory language as well as the purpose and practical considerations of the Bankruptcy Code for answers. The Court should decide that creditors, holding onto property seized before the debtor filed petition for bankruptcy (pre-petition), must return the property to the debtor.

In re Cowen Creates a Divide

The automatic stay provision of the Bankruptcy Code prohibits a creditor from taking “any act to exercise control over property of the [debtor’s] estate.”[2] The automatic stay provision operates to “afford the debtor a ‘breathing spell’ by halting the collection process.”[3] This allows the debtor to formulate a “plan or simply . . . be relieved of the financial pressures that drove [the debtor] into bankruptcy.”[4]

In 1983, the Supreme Court expanded the “breathing room” of the debtor’s bankruptcy estate in U.S. v. Whiting Pools, Inc.[5] Critically, the Whiting Court held that the debtor’s bankruptcy estate included property that had been repossessed pre-petition.[6] The following year, Congress expanded protections to the debtor’s estate by extending the Bankruptcy Code’s stay provision from prohibiting only acts to obtain possession to prohibiting any act that “exerts control” over the debtor’s property.[7] This amendment, read together with Whiting Pools,  dictates that a creditor may not “exert control” over any property that it seized pre-petition. The legislative history is silent as to what Congress meant by “exerting control.”[8] This left the courts to determine whether “exerting control” requires an affirmative act, or if merely possessing the property is a violation of the stay.

The majority of jurisdictions would have the creditor return any secured collateral to the debtor’s bankruptcy estate immediately after the debtor files a bankruptcy petition.[9] The Seventh Circuit in Thompson v. General. Motors Acceptance Corp., LLC, examined the frequent occurrence of a repossessed car.[10] The court determined that the creditor, having seized the car before the bankruptcy petition, was exerting control over the collateral by storing the car on the lot and refusing to return it.[11]

In a nearly identical scenario, the Tenth Circuit explicitly rejected the Thompson court’s holding.[12] In In re Cowen, a debtor’s commercial truck was repossessed by a lender after the debtor defaulted on payment and the lender refused to return the truck to the bankruptcy estate.[13] Under circumstances virtually identical to those of Thompson, the Tenth Circuit found the plain text of the automatic stay provision dispositive.[14] The court held that the stay provision requires a creditor to take an affirmative step before any violation occurs.[15] The Tenth Circuit lamented that Thompson had prioritized policy and practicality over what the Tenth Circuit found to be a plain reading of the statute.[16] However, inspection of the statute reveals that there may not be a satisfactory “plain reading” after all.

The Automatic Stay Provision is Ambiguous

The Thompson court first focused on the plain meaning of what it means to “exert control.” The plain meaning of “control”, the court found, meant that simply possessing pre-petition property was sufficient.[17] This “possession as control” approach to the automatic stay provision is not a novel reading of the provision, with most courts using an identical interpretation.[18]

Cowen, in contrast, places emphasis not just on “control,” but on “acts . . . to control.”[19] The Tenth Circuit found that “acts” necessarily require an affirmative step.[20] Passive possession, therefore, does not constitute an “act” under the automatic stay provision.[21] The only commonality between the circuits, it seems, is that Congress was silent on what they meant when they added “control” to the automatic stay provision.[22] The disagreement over the plain meaning of the automatic stay is a strong case in itself for ambiguity.[23] Therefore, a deeper inquiry into the animating forces behind the provision is necessary.

Legislative History and Policy Evince Greater Protections

In Whiting Pools, the Supreme Court noted that the Bankruptcy Code encouraged the efficient use of a debtor’s assets.[24] The Supreme Court held that “under the reorganization provisions of the Bankruptcy Code, a troubled enterprise may be restructured to enable it to operate successfully in the future.”[25] The legislative history of the Bankruptcy Code’s reorganization provisions points to an intent to encourage the use of all the estate’s assets.[26] Assets in the debtor’s possession better serve the purpose of reorganization when they are in use than if they were to be  “sold as scrap.”[27] The majority position recognizes the Code’s protective purpose and is therefore the correct reading of the statute.

Against this backdrop, the Thompson court argued that to “hold that ‘exercising control’ over an asset encompasses only selling or otherwise destroying the asset would not be logical given the central purpose of reorganization bankruptcy.”[28] The Thompson court further observed that “[a]n asset actively used by a debtor serves a greater purpose to both the debtor and his creditors than an asset sitting idle on a creditor’s lot.”[29] The majority position points to further Bankruptcy Code provisions to suggest the automatic stay provision, as the majority understands it, is intended to work in tandem with other Code provisions to make the automatic stay self-executing upon bankruptcy petition.[30]

While the Tenth Circuit court in Cowen found their own interpretation of the stay provision dispositive, it nevertheless leveled further critique at the majority position.[31] The Tenth Circuit iterated that the majority position’s “best argument” was the link between the automatic stay and other Code provision.[32] The Cowen court found this line of reasoning unpersuasive, finding no “textual link” between the provisions to support such a reading of the Bankruptcy Code.[33] Cowen further criticized the majority position as being too broad in its reading of legislative intent.[34] “Congress,” the Tenth Circuit warned, “does not ‘hide elephants in mouseholes.’”[35]

The Tenth Circuit’s categorical rebuke of the majority position invites the Supreme Court to weigh in.[36] On closer examination, it becomes evident that the majority position, requiring a self-executing automatic stay provision mandating the return of pre-petition property, more closely embodies the legislative intent of the automatic stay provision.

Cowen Undermines the Purpose of the Automatic Stay

Much of the seminal litigation around the automatic stay provision involves the disposition of commercial vehicles.[37] Often, the debtor seeks to reclaim the use of the vehicle, aiming to utilize it in a commercial capacity in order to satisfy the bankruptcy estate’s creditors. These vehicles are, as the Supreme Court has noted, more efficiently used when they are poised to generate revenue to satisfy the debts of the estate.[38] A self-executing automatic stay provision promotes industrious use of collateral.[39] A self-executing automatic stay provision allows the debtor to pay off the creditor without requiring the estate to motion the court for a return of the collateral. Cowen’s interpretation would discourage and even require an inefficient use of property squarely within the debtor’s estate.[40] To achieve the return and, therefore, efficient use of the debtor’s collateral, the burden is shifted to the (already strained) bankruptcy estate to petition the court for a return.[41]

But this holding ignores the burdens that the automatic stay provision mandates. The stay provision squarely places the burden on the creditor to motion the court for the return of any property.[42] Even then, this is a heightened burden that is only to be granted if the court finds that the debtor is not sufficiently protecting the creditor’s collateral.[43] Under this framework, the debtor is allowed to generate revenue through the use of their property, while simultaneously protecting the creditor’s interest in the value of the collateral. The Tenth Circuit’s interpretation would paradoxically require the debtor to resort to court-petitioning in order to put to use what is already their own property.[44] The Tenth Circuit’s reading is contrary to both the fundamental protections of the automatic stay provision[45] and the Bankruptcy Code’s requirement of judicial efficiency.[46] For these reasons, the majority reading should be adopted by the Supreme Court.


Cowen has acted as a needless agitator to a common occurrence in bankruptcy. The Tenth Circuit has ignored the majority of circuits’ identical understanding of the plain meaning of the Bankruptcy Code’s stay provision. Instead, the Tenth Circuit found its own understanding of the Code dispositive and would require an affirmative act to “establish control” of seized pre-petition collateral. The Tenth Circuit ignores the expansive and fundamental tenants of the Bankruptcy Code. This expansive reading was articulated by legislative history as well as Supreme Court precedent. The Cowen court criticized the majority’s use of Code provisions working in tandem to support its textual interpretation. The Cowen reading, however, results in an inefficient burden-shifting that the drafters of the Code had not intended and one that goes against the core tenants of the Code. For these reasons, the Supreme Court should find that the proper reading of the automatic stay provision mandates any property seized pre-petition to be returned upon bankruptcy filing.

[1] 849 F.3d 943, 946 (10th Cir. 2017).

[2] Id.

[3] In re Siciliano, 13 F.3d 748, 750 (3d Cir. 1994).

[4] H.R. Rep. No. 595, 95th Cong., 2d Sess. 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296.

[5] 462 U.S. 198, 199 (1983).

[6] Id. at 209.

[7] PL 98–353 (HR 5174), PL 98–353, July 10, 1984, 98 Stat 333.

[8] Thompson v. Gen. Motors Acceptance Corp., LLC, 566 F.3d 699, 702 (7th Cir. 2009).

[9] See, e.g. Weber v. SEFCU (In re Weber), 719 F.3d 72, 81 (2d Cir. 2013); Thompson v. Gen. Motors Acceptance Corp. (In re Thompson), 566 F.3d 699, 703 (7th Cir. 2009); In re Sharon, 234 B.R. 676, 681 (B.A.P. 6th Cir. 1999).

[10] Thompson v. Gen. Motors Acceptance Corp., LLC, 566 F.3d 699 (7th Cir. 2009).

[11] Id. at 704.

[12] In re Cowen, 849 F.3d 943 (10th Cir. 2017).

[13] Id. at 946.

[14] Id. at 949.

[15] Id. at 949.

[16] In re Cowen, 849 F.3d at 948-49.

[17] “Holding onto an asset, refusing to return it, and otherwise prohibiting a debtor’s beneficial use of an asset all fit within this definition, as well as within the commonsense meaning of the word.” Thompson, 566 F.3d at 702. This conclusion was reached by consulting the dictionary version of “control.”

[18] See, e.g. In re Weber, 719 F.3d 72, 79 (2d Cir. 2013) (holding that the standard dictionary definition of “control” unavoidably lead to the conclusion that holding a debtor’s car post-petition constituted exercising authority over the property and therefore fit squarely into the definition of “control”); In re Sharon, 234 B.R. 676, 682 (Bankr. App. 6th Cir. 1999) (“Withholding possession of property from a bankruptcy estate is the essence of ‘exercising control’ over possession.”).

[19] “Breaking down the sentence, ‘any act’ is the prepositive modifier of both infinitive phrases. In other words, § 362(a)(3) prohibits ‘any act to obtain possession of property’ or ‘any act to exercise control over property.’” Cowen, 849 F.3d at 949.

[20] “’Act’, in turn, commonly means to ‘take action’ or ‘do something.’” Cowen, 849 F.3d at 949

(citing New Oxford American Dictionary 15 (3d ed. 2010)).

[21] Cowen, 849 F.3d at 949.

[22] Cowen, 849 F.3d at 949; Thompson, 566 F.3d at 702.

[23] See Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533 (1983). “Too often the meaning of a statute is smuggled into the rules that determine when, and why, to cut off debate. The philosophy of language . . . has established that sets of words do not possess intrinsic meanings and cannot be given them; to make matters worse, speakers do not even have determinative intents about the meanings of their own words.” Id. at 536.

[24] Whiting Pools, 462 U.S. at 203.

[25] Id.

[26] “It is more economically efficient to reorganize than to liquidate, because it preserves jobs and assets.” H.R. REP. 95-595, 220, 1978 U.S.C.C.A.N. 5963, 6179.

[27] Id.; See also Whiting Pools, 462 U.S. at 203.

[28] Thompson, 566 F.3d at 702.

[29] Id.

[30] “This reading supports a framework wherein § 542 creates a self-executing obligation for creditors to return assets to the estate, and § 362 provides a ‘remedy for failure to do so.’” Anne Zoltani & Hon. Janice Miller Karlin, Examining S 362(a)(3): When “Stay” Means Stay, 36 Am. Bankr. Inst. J. 20, 21 (May 2017) (quoting Abrams v. Sw. Leasing & Rental Inc. (In re Abrams), 127 B.R. 239, 242-43 (B.A.P. 9th Cir. 1991)).

[31] “In this case, [this] is . . . where the inquiry ends, for where, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.”  Cowen, 849 F.3d at 949.

[32] Cowen, 849 F.3d at 950.

[33] Id.

[34] Id. at 949.

[35] Id.

[36] Anne Zoltani & Hon. Janice Miller Karlin, Examining S 362(a)(3): When “Stay” Means Stay, supra note 32, at 61.

[37] See, e.g. Cowen, 849 F.3d; Thompson, 566 F.3d; Weber v. SEFCU (In re Weber), 719 F.3d 72 (2d Cir. 2013); In re Sharon, 234 B.R. 676 (Bankr. App. 6th Cir. 1999).

[38] H.R. REP. 95-595, 220, 1978 U.S.C.C.A.N. 5963, 6179; Whiting Pools, 462 U.S. at 203.

[39] Even outside the context of commercial use, cars are often necessary tools to have debtors remain in an economically viable position. A simple statistic highlights this necessity: over 86 percent of Americans rely on a car to go to work. U.S. Census Bureau, Who Drives to Work? Commuting by Automobile in the United States: 2013, at 2 (2015),

[40] “We conclude that the reorganization estate includes property of the debtor that has been seized by a creditor prior to the filing of a petition for reorganization.” Whiting Pools., 462 U.S. at 209. Cowen, on the other hand, does not require an automatic turnover, nor does Cowen apply the automatic stay provision to pre-petition property at all. Cowen, 849 F.3d at 950.

[41] Id. The practical effect of not applying the automatic stay provision in so place no affirmative obligation on the debtor; rather the creditor most move the court to compel a return. Anne Zoltani & Hon. Janice Miller Karlin, supra note 37, at 61.

[42] 11 U.S.C.A. § 362(d); see also 3-362 Collier on Bankruptcy P 362.07 (16th 2017).

[43] 11 U.S.C.A. § 361.

[44] Whiting Pools., 462 U.S. at 209.

[45] H.R. REP. 95-595, 220, 1978 U.S.C.C.A.N. 5963, 6179.

[46] “These rules shall be construed to secure the just, speedy, and inexpensive determination of every case and proceeding.” Fed. R. Bankr. P. 1001.

Scope of Discovery: Amended 26(b)(1)

Zach Kurzhals, Associate Member, University of Cincinnati Law Review

In 2015, the United States Supreme Court adopted amendments to the Federal Rules of Civil Procedure (FRCP). Among these changes was an amendment to FRCP Rule 26(b)(1) adding the component of proportionality to the existing component of relevance. FRCP Rule 26 governs civil discovery and 26(b)(1) specifically deals with the scope of discovery.[1] The interpretation and application of Rule 26(b) is a critical component to the cost of litigation. Attorneys must understand how courts apply 26(b)(1) to accurately estimate the costs of litigation for their clients.[2]  This is especially true in the age of electronically stored information where lawsuits can require parties to turn over millions of documents.[3] There appears to be two approaches to interpret the new Rule 26(b)(1). In the first approach, the Arizona district court splits the analysis into two parts.[4] The second approach focuses on relevance and is almost identical to the approach utilized before the 2015 amendment.[5] An examination of the amended rule and the Advisory Committee notes suggests the Arizona court’s approach better addresses the Committee’s concerns.

The Amendment: Then and Now

Rule 26(b)(1) prior to the 2015 amendment provided for the scope of discovery to be dependent on relevancy and limited to discovery requests that “appear reasonably calculated to lead to the discovery of admissible evidence.”[6] This language was explicitly discarded and replaced by a proportionality standard that includes six considerations for parties and courts to utilize when discovery conflicts arise.[7]

The Amended Rule: Arizona

The Arizona district court specifically addressed the amendment to Rule 26(b)(1) in an order denying a discovery request.[8] In In re: Bard IVC Filters Products Liability Litigation patients brought a products liability action against a medical device manufacturer.[9] The patients sought discovery of all communications between the defendant and foreign regulators.[10] The court determined the majority of requested communications originated inside the U.S. and Bard’s proffered search would disclose those communications.[11]  However, the plaintiffs hoped to find inconsistencies between domestic communications and the communications originating from Bard’s foreign entities.[12] The discovery dispute centered upon requests regarding foreign originating communications.[13] The court split its analysis into two sections: a relevancy section and a proportionality section.[14]

The court found the discovery sought to be marginally relevant, then addressed proportionality.[15] For the court’s proportionality analysis, it specifically addressed three of the six factors outlined in Rule 26(b)(1).[16] The court found that the relative access to information favored compelling discovery, but the court also reiterated that the importance of the additional discovery for resolving the issues appeared to be marginal.[17] However, Bard presented the court with specific details illustrating the burden accompanying the discovery requested.[18] These specifics persuaded the court to find the discovery request to be too burdensome and expensive in comparison to the benefit of “a mere possibility of finding . . . inconsisten[cy].”[19] Because the request was not proportional to the needs of the case, the court concluded Bard need not comply with the request.[20] According to the court, the burden of proving proportionality was not placed on the party seeking discovery.[21] Instead, this inquiry is the responsibility of the parties and the court.[22] It appears in Arizona, a party embroiled in a discovery dispute should be prepared to present specifics supporting their position on proportionality, regardless of the position they hold on the discovery request.[23]

The Difference in Texas

In considering a motion to compel discovery the Texas district court addressed the amended Rule 26(b)(1). In Carr v. State Farm Mutual Automobile Insurance Company, the plaintiff was injured in an automobile accident and was denied coverage on some claims. [24]  The insurance company was seeking to compel answers to interrogatories and document requests. According to the district court, the new version of 26(b)(1) made no material changes to proportionality. Additionally, the court stated that a party seeking to resist discovery bears the burden of making specific objections regarding proportionality.[25] Furthermore the party seeking discovery may still need to make its own showing of proportionality factors.[26]

The court discussed its general understanding of a few proportionality factors in the rule.[27] The court’s discussion relied heavily on the previous Committee Notes for the rule’s amendment in 1983,[28] when proportionality was first considered within Rule 26, and Committee Notes from 1993.[29] Thus the court applied the same interpretation and utilized the rule in the same fashion as district courts over the last two decades. As a result, the Texas court did not feel compelled to articulate application of its understanding of the proportionality factors in its analysis. This created an appearance that the District Court’s basis for granting discovery was almost entirely dependent on relevancy. It appears in Texas, a party embroiled in a discovery dispute need only be prepared to argue whether or not the requested material is relevant.

Arizona Approach v. Texas Approach

The committee notes pertaining to the new version of 26(b)(1) explicitly stated the goal of the amendment is “to stimulate greater judicial engagement when discovery approached the margins of what might be relevant to the case.”[30] The experience of the Committee suggested a more dramatic step was needed to ensure a more consistent and diligent application of discovery limits by the courts.[31] This step was to remove the “reasonably calculated” language and insert the proportionality language directly into 26(b)(1), thus raising the perception of proportionality.[32]

The two approaches discussed above have two major similarities that align with the revised rule. First, they both refrain from incorporating the phrase “reasonably calculated” in their analyses.[33] Second, both courts agree the burden of discovery is not placed on the party seeking discovery.[34] However, in the application of the new version of Rule 26(b)(1), the courts differ greatly. The Arizona court decided discussion of discovery requires analysis be split into two parts, with one part focusing on proportionality. The Texas Court maintained proportionality as an inherent consideration under relevancy.

The Arizona District Court explicitly listed and discussed various factors of proportionality and provided findings in consideration of those factors in support of its ultimate decision.[35] The Texas District Court only summarized its understanding of a few factors of proportionality and did not explicitly apply them in its analysis of the discovery requests.[36] There could be various explanations for this less involved approach that would harmonize the two courts. For example, perhaps the Texas Court did not feel the discovery in dispute approached the margins of what may be relevant in the case. However, most of these explanations are defeated when looking at subsequent decisions of the Texas court:[37] the court continues to almost entirely disregard proportionality in its analysis.[38] This approach causes parties to focus almost entirely on relevance, despite the intention of revising Rule 26(b)(1) to add emphasis on proportionality.[39] By separating the analysis into two distinct parts, the Arizona approach will prove to more effectively address the problems that the amended Rule 26(b)(1) was intended to address.

If district courts adopted a stance similar to Arizona’s District Court in Phoenix and created a two part approach to addressing discovery, it is certainly more likely these courts will develop a consistent and diligent application of discovery limits.[40] Although this may require a more in-depth analysis for every discovery dispute, this is an analysis that is not typically time consuming. For discovery disputes concerning what some consider an apparent proper outcome, courts would only have to devote as much time to proportionality as the parties could bring arguments with supporting facts. Additionally, the committee notes make clear the intent was to garner greater judicial involvement in discovery.[41] This inherently requires more time and effort by District Courts. Therefore, this new burden to District Courts has already been considered by the Advisory Committee and the Supreme Court when adopting this revision. The Texas approach appears to simply languish in the pre-amendment language and this is evidenced by the heavy reliance the Texas Court placed on Committee Notes of 1983 and 1993 while almost completely ignoring the 2015 Committee Notes. It is certainly true the 1983 and 1993 Committee notes can explain,[42] and are in fact referenced by the 2015 notes when explaining, the different factors of proportionality.[43] However, if over-discovery is to be remedied as the Advisory Committee hopes to remedy it, with greater judicial involvement, the new approach is required.

The real change to Rule 26(b)(1) can be found in the notes and it is not a substantive change to the rule. The Arizona District Court out of Phoenix, utilizing the 2015 Committee Notes, recognized the Committee’s attempt at reinvigorating proportionality and increasing judicial engagement.[44] Clearly the revision was an attempt to change how courts address disputes concerning the scope of discovery. It is for this reason the Arizona approach, a new analysis to considering scope of discovery, is preferable to that of the Texas approach, which appears to maintain the status quo from the previous 15 years.

[1] Fed. R. Civ. Pro. 26(b)(1)

[2] 20 Paula Hannaford-Agor & Nicole L. Walters, Estimating the Cost of Civil Litigation 4-7 (No. 1 2013).

[3] Drone Techs., v. Parrot S.A., 838 F.3d 1283, 1296 (Fed. Cir. 2016) (Defendant produced over 14 million pages of documents).

[4] In re: Bard IVC Filters Products Liability Litigation, 317 F.R.D. 562, 566 (D. Ariz. 2016) (Phoenix Division).

[5] Carr v. State Farm Mutual Automobile Insurance Company, 312 F.R.D. 459, 472 (N.D. Tex. 2015) (Dallas Division).

[6] Fed. R. Civ. P. Rule 26(b) (2000).

[7] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“That language had been misread and misunderstood by many.”); Id. (“[I]t was no longer sufficient to show that the proposed discovery was relevant.”); The rule lists the following six considerations for proportionality: importance of the issues at stake in the action; the amount in controversy; the parties’ relative access to relevant information; the parties’ resources, the importance of the discovery in resolving the issues; whether the burden or expense of the proposed discovery outweighs its likely benefit.

[8] In re: Bard, 317 F.R.D. 562, 566 (D. Ariz. 2016).

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 563.

[13] Id. at 565.

[14] Id. at 564 (“Relevancy alone is no longer sufficient—discovery must also be proportional to the needs of the case.”).

[15] Id. at 566.

[16] Id. (discussing the importance of the discovery in resolving the issues, relative access to relevant information, and whether the burden or expense of the proposed discovery outweighs the benefit).

[17] Id.

[18] Id. In order to comply with the discovery request Bard asserted they would have to identify applicable custodians of the foreign communications, from entities in eighteen different countries for the last thirteen years, collect ESI from them, and search for and identify communications with foreign regulators.

[19] Id.

[20] Id.

[21] Id. at 564 (“[T]he amendment does not place the burden of proving proportionality on the party seeking discovery.”).

[22] Id.

[23] See Id.

[24] 312 F.R.D. 459, 472 (N.D. Tex. 2015).

[25] Id. at 466 (“burdens to show undue burden or lack of proportionality have not fundamentally changed.”).

[26] Id. at 468.

[27] Id. at 467-68 (discussing relative access to relevant information; the amount in controversy; the parties’ resources; and the burden or expense of proposed of proposed discovery).

[28] Id.

[29] Id. Accordingly, relative access to relevant information focused on “information asymmetry” and discovery bears heavier on the party with more information. The amount in controversy, the court explained, is only one factor to be balanced against others, such as vitally important personal and public values. Consideration of the parties’ resources, the court continued, does not foreclose discovery requests to poor parties or justify unlimited discovery from wealthy parties. Lastly, the court stated that the burden or expense of proposed discovery should be determined in a realistic way and that new advancements in computing and electronically searching information should be considered.

[30] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015)

[31] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“not to impose any new limits or alter the parties’ duties but rather to increase awareness of the limits and duties that have existed—but have too often been overlooked or ignored—since 1983.”).

[32] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“That language had been misread and misunderstood by many as a statement about the scope of discovery.”).

[33] In re Bard, 317 F.R.D. 562, 565-66; Carr, 312 F.R.D. 459, 469-72.

[34] In re Bard, 317 F.R.D. 562, 564; Carr, 312 F.R.D. 459 467.

[35] In re Bard, 317 F.R.D. 562, 566.

[36] Carr v. State Farm Mutual Automobile Insurance Company, 312 F.R.D. 459, 472 (N.D. Tex. 2015) (Dallas Division).

[37] Gondola v. USMD PPM, LLC, 223 F. Supp. 3d 575, 581-92 (N.D. Tex. 2016) (separating the court’s analysis into eleven separate parts, without utilizing the word proportional and discussing a single factor of proportionality once).

[38] See Gondola, 223 F. Supp. 3d 575, 581-92 (N.D. Tex. 2016); See also, e.g., Samsung Elecs. Am., Inc. v. Yang Kun Chung, No. 3: 15-CV-4108-D, 2017 WL 2832621, at *46 (N.D. Tex. June 26, 2017).

[39] Carr, 312 F.R.D. 459, 471 (“Defendant explains that ‘[t]the policy under which Plaintiff seeks to recover includes an “Other Insurance” provision’ . . . and asserts ‘[t]hese requests are directly relevant to any offsets to which State Farm may be entitled.”).

[40] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“[T]o get judges and parties to more consistently and more diligently fulfill their longstanding obligations.”).

[41] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015).

[42] Fed. R. Civ. P. 26(b) advisory committee’s note (1993); See also Fed. R. Civ. P. 26(b) advisory committee’s notes (1983).

[43] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015).

[44] See In re Bard, 317 F.R.D. 562, 564-565.