Sessions Information

  • May 2, 2018
    9:00 am - 10:30 am
    Session Type: AALS Programs
    Session Capacity: N/A
    Location: N/A
    Room: Salon 1
    Floor: Third Floor

    When Forming a Business is a Felony

    Eric Franklin Amarante, University of Tennessee College of Law

    Self-employment is the most efficient way for undocumented people to better their economic prospects. Thus, advocates often help immigrants to form and run their own businesses. Because there is no citizenship requirement for many business structures, this is a viable way to help undocumented people become economically self-sufficient.

    However, this practice may be illegal. Under 8 U.S. Code § 1324, “[a]ny person who [knowingly] encourages … an alien to … reside in the United States” is committing a felony. It is not clear if advice regarding business formation constitutes such felonious encouragement because interpretation of this statute has been uneven and conflicting.

    This article will explore the breadth and limits of the federal anti-harboring statute as well as the more recent state anti-harboring statutes. This article will examine if helping undocumented entrepreneurs form legal entities violates federal law, state law, or professional rules of ethics

    Should Criminal Courts Borrow Structures and Remedies Used by Civil Courts to Address Spoliation of Evidence?

    John J. Francis, Washburn University School of Law 

    Video evidence in criminal cases can originate from many sources. It may be recorded by law enforcement officers, complaining witnesses, and bystanders. The right to a fair trial demands that relevant video evidence be made available to criminal defendants during discovery and at trial. Yet in criminal prosecutions, video recordings are not always preserved or made available as trial evidence. 

     A person who intentionally destroys evidence in a criminal case may face criminal prosecution, but there is not always a remedy for the defendant in the case from which the evidence is missing. Without a showing of bad faith by police, “failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58, (1988).

     By contrast, in civil matters, a party on notice that it has evidence relevant to current or future litigation must take steps to preserve that evidence. Failure to do so can result in clear sanctions.  Zubulake v. UBS Warburg, 220 F.R.D. 212, (2003).

     This article explores analytical structures and remedies used to prevent and remedy spoliation of evidence in civil cases and suggests applying those procedures to criminal cases. When freedom of a criminal defendant is on the line, there should be clear procedures requiring preservation of evidence and predictable sanctions when government actors fail to make that evidence available in discovery and at trial

Session Speakers
Washburn University School of Law
Works-in-Progress Presenter

University of Tennessee College of Law
Works-in-Progress Presenter

Session Fees

Fees information is not available at this time.