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For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform. The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought. There is no widely accepted normative theory of the prosecutorial role. As a result, prosecutors are viewed as the criminal justice system’s free agents, deploying the powers of their offices as they see fit to serve constituents, public safety, or, most broadly, the cause of justice. This Article uses the rapidly shifting views about prosecutors to explore normative theories of prosecution: What should prosecutors be doing? It highlights the emptiness of the current “do justice” model and proposes an alternative “servant-of-the-law” theory of prosecutorial behavior that could place real constraints on prosecutorial excess. It also explores ways in which a servant-of-the-law model could, perhaps counterintuitively, contribute much-needed theoretical grounding to the progressive prosecution movement.

The Fourth Amendment's prohibition of \"unreasonable searches\" is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term \"search\" remains surprisingly elusive. Even the justices know they have a problem. Recent opinions only halfheartedly apply the controlling \"reasonable expectation of privacy\" test and its wildly unpopular cousin, \"third-party doctrine,\" with a few justices in open revolt. These fissures hint at the Court's openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The justices themselves offer little in the way of a replacement. And scholars' proposals exhibit the same complexity, subjectivity, and illegitimacy that pervade the status quo. This Article proposes a shift toward simplicity. Buried underneath the doctrinal complexity of the past fifty years is a straightforward constitutional directive. A three-part formula, derived from the constitutional text, deftly solves the Fourth Amendment \"search\" conundrums that continue to beguile the Court. This textualist approach offers clarity and legitimacy, both long missing from \"search\" jurisprudence. And by generating predictable and sensible answers, the proposed framework establishes clear boundaries for police investigation while incentivizing legislators to add additional privacy protections where needed.

The intricate legal framework governing the admission of out-ofcourt statements in American tnals is premised on increasingly outdated communication norms. Nowhere is this more apparent than with the hearsay exception for \"present sense impressions. \"Changing communication practices typified by interactions on social media websites like Facebook and Twitter herald the arrival of a previously uncontemplated—and uniquely unreliable—breed of present sense impressions. This Article contends that the indiscriminate admission of these electronic present sense impressions (e-PSIs) is both normatively undesirable and inconsistent with the traditional rationale for the present sense impression exception. It proposes a reform to the exception that would exclude unreliable e-PSIs while simultaneously realigning the modern rule with its historical rationale. In so doing, this Article sounds an early warning to courts and legislators regarding similar challenges on the horizon, as modern communication norms continue to evolve beyond the contemplation of the draflers of the hearsay rules.

[...]prosecutorial lenience in the United States should be abundant. [...]if those actors cannot or will not take on that role, it becomes hard to object when prosecutors fill the void. [...]if American legislators arc creating an overly punitive default system with the expectation that prosecutors will blunt its sharp edges, resisting prosecutor lenience undermines legislative intent.21 This Symposium Essay explores prosecutorial lenience through the lens set out above. [...]prosecutorial lenience can surface in bail or sentencing recommendations as well as efforts to void convictions. [...]prosecutors who seek severity based on a particular factor should recognize that lenience is called for when that factor is reversed.

There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project's uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.

A symposium comes at a critical juncture for the prosecutors in the US. One important question--\"Is there room for a new kind of prosecutor?\"--has already been answered. Self-styled \"progressive prosecutors\" are flourishing in jurisdictions across the country. The question remains whether the progressive prosecutor movement will have a lasting impact and, if so, what that impact will be. One way this question will be answered is through the movement's influence on the many prosecutors who are open to reform but unlikely to adopt the \"progressive\" label or accompanying rhetoric. Here, the theme is explored by discussing the rise of progressive prosecution and how this movement's initial success can stimulate the long-overdue development of a generally applicable, normative theory of the prosecutor's role. It suggests a conceptualization of the American prosecutor as a caretaker for the criminal justice system, who should default to lenience when that system becomes so congested and punitive that it cannot deliver on its constitutional ideals.

While the American criminal justice system was once known for its impressive features, like the jury trial and an independent judiciary, the system's most notable feature in modern times is its high incarceration rate. Judge Adelman urged judges to act, stating that \"if we are actually to achieve a significant reduction in the federal prison population, federal judges will have to make major changes in their sentencing practices. Since judges had to issue precise, meaningful sentences, it became easy to identify and replace judges who were \"soft on crime.\" In 2011, for example, the Federal Sentencing Commission reported that only 27 percent of sentencings involved a defendant subject to a mandatory minimum and almost half of those avoided the mandatory sentence through substantial-assistance/ safety-valve provisions - and that this proportion had remained relatively stable over the past 20 years.5 In other words, mandatory minimums could account for only about 14 percent of sentencings.

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself. Critics ' primary target is the \"trial penalty. \" But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of \"progressive prosecutors\" is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source. Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining. It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved. Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key. And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant 's choice into something resembling a bet at a Las Vegas casino- a solemn spectacle of plea-bargaining roulette. Identifying uncertainty as plea bargaining's distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process-this country's dominant mechanism for resolving criminal cases. Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective.

In 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means. The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, access to contraception, loud neighbors, telemarketing calls, and on and on. This \"pluralistic turn\" has made privacy popular, but this popularity comes at a cost. Lacking precision, ubiquitous invocations of privacy tend to cloud rather than clarify, raising the temperature of academic and policy debates while generating little light. This Article proposes a baseline definition of \"privacy\" to anchor legal discourse. The definition responds to privacy skeptics by identifying a core of pure privacy that can and should be protected. But it also pushes back on privacy pluralists by insisting on the need for precision. In a post-pandemic world, policymakers face powerful temptations to override longstanding privacy protections and countervailing pressures to abandon lifesaving policies in the face of vigorous privacy objections. Precisely identifying what is at stake in these debates can help to clarify the difficult choices that will shape the future.

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant's prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence. This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments-including the results of a new 400-person mock juror simulation conducted for this Article-and data from real trials. It concludes that the penalty defendants suffer when they refuse to testify is substantial, rivaling the more widely-recognized damage done to a defendant's trial prospects by the introduction of a criminal record. Moreover, these two penalties work in tandem, creating a \"parallel penalty \" effect that systemically diminishes the prospects of acquittal and incentivizes guilty pleas. The empirical evidence surveyed, including the new juror simulation, will be of obvious interest to participants in the criminal justice system. But, as the Article explains, the data also present a powerful indictment of the system itself.